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HomeMy WebLinkAbout02-0103JOHN GROSS & COMPANY, INC., Plaintiff Vo GARY BENTZEL and DUTCH : COUNTRY RESTAURANT, INC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW .] NO. t59~' /tg~ ~ JURY TRIAL OF TWELVE DEMANDED 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 Plaintiffs. 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 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Date: MARTSON DEARDORFF WILLIAMS & OTTO By ~~0 eO6'6Y'ge 1~ F~ller,'-~r, F_g~e I. D. Number 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff John Gross & Company, Inc. JOHN GROSS & COMPANY, INC., Plaintiff GARY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. lOB JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff, John Gross & Company, Inc., is a Pennsylvania corporation with a principal place of business at 400 Cheryl Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant, Gary Bentzel, is an adult individuals residing at 1031 Beir Road, Hanover, Pennsylvania 17231. 3. The Defendant, Dutch Country Restaurant, Inc., is a business entity located at 946 Baltimore Street, Hanover, Pennsylvania 17331. 4. On July 10, 1996 Plaintiffs received a credit application signed by Gary L. Bentzel, President of Dutch Country Restaurant, Inc. 5. From July 10, 1996 up until April 4, 2000, the Plaintiff provided goods and services to the entity known as Dutch Country Restaurant. As of April of 2000 there was an outstanding balance on the account of $16, 126.51. 6. Additional payments were made on the account which reduced the balance due to $10, 124.03 as of June 28, 2001. 7 Despite repeated demand, no payment has been made by the Defendants. WHEREFORE, Plaintiff, John Gross & Company, Inc., demands judgment against the Defendants in the amount of $10, 124.03 plus interest of 18% per annum from June 28,2001, attorneys fees and costs. Date: MARTSON D/~ ~O/~F~I~LIAMS & OTTO Ten East High S~eet Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff John Gross & Company, Inc. JRN-08-2002 TOE 10:32 RM JOHN 6R055 CO FAX NO, 17177909642 P, 02 0~/08/2002 10:46 717243Z8~7 MDWO Thc f~r~goi~g C~mplalnt is baser upon ~n w~ch in ~e p~afion of~e laws~t, ~e ~ge of ~ co~sel, it is ~e ~d co~ ~o ~e b~t ofmy ~o wled~, ~o~on md b~ei To &e e~t · a~ thc c~t~t of ~e doc~,~t is t~t of ~cl, I wdficaio~ TMs star, mt ~ v~fion ~ mad~ ~abj~t ~ ~¢ p~ o f 18 Pa. C.S. S~:~ 4904 r~h~ to ~wom ~sificag~ to ~fies~ wM& pw~es ~t tf I m~o ~w~ly ~se / CERTIFICATE OF SERVICE I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Gary Bentzel 1031 Beir Road Hanover, PA17331 Dutch Country Restaurant 946 Baltimore Street Hanover, PA 17331 MARTSON DEARDORFF WILLIAMS & OTTO BY/~/~/~ ~ ~4~7 Melinlda A. Hall Ten East High Street Carlisle, PA 17013 (717) 243-3341 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00103 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JOHN GROSS & COMPANY INC VS BENTZEL GARY ET AL R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT BENTZEL GARY but was unable to locate Him deputized the sheriff of YORK , Sheriff or Deputy Sheriff who being says, that he made a diligent search and in his bailiwick. County, serve the within COMPLAINT & NOTICE , to wit: He therefore Pennsylvania, to On January 22nd , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 44.43 .00 81.43 01/22/2002 MDW&O Rd Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this 30 ~ day of~ ~q~ 2- A.D. ' ' Prothondt ~r~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00103 P COMMON-WEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JOHN GROSS & COMPANY INC VS BENTZEL GARY ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: DUTCH COUNTRY RESTURANT INC but was unable to locate Them in his bailiwick. deputized the sheriff of YORK County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On January 22nd , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge 6.00 ,00 10.00 ,00 .00 16,00 o /22/2oo2 MDW&O So answ~ers~,.~.~ j,~ _~/~_~ R~. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this 309 day of ~ ~2~ A.D. ! ;-- ProtHonota'r~ ' PROCESS RECEIPT and AFFIDAVIT OF RETURN COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE SERVICE CALL (717) 771-9601 civil John Gross & Cuhp~uny Inc. 4. TYPE OF WRIT OR COMPUUNT 3. DEFENDANT/S/Gary Bentzel et al Notice & Cc~pla~nt SERVE ( s. NAME OF INDIVIDUAL, COMPANY, CORPO~TION, ETC TO SERVE OR DESCRI~ION OF PROPER~ TO BE LEVIED, A~ACHEO, OR SOLD. ~ ~ntzel 6. ADDRESS (S~ RFO ~TH BOX NUMBER, APT. NO., Ct~, BORO, ~., STATE AND ZIP CODE) AT 1031 ~ Road Hanover, PA 17231 7. INDICATE SERVICE: ~1 PERSONAL C3 PERSON IN CHANGE X~DEPUTIZE C),.~CE__R~._LV~L__.= O 1ST CLASS MAIL C) POSTED C} OTHER NOW Januaz7 ~0 ,2002 I, SHERIFF O~ COU_N~F, P~, do hereby d~e~uj~e the sheriff of York ___ _ COUNTY to to law. This deputization being made at the request and risk of the plaintiff C~iI~o~CTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: AB~I~' FL~E ;'PA;It) BY.=SHER I F F Cumberlan~ OUT 0~:, _CI:~K~ TY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N,B. WAIVER OF WATCHMAN - Any deputy sheriff ~evying upon or attaching any property unde~ within writ may leave same wflhout a watchman, in custody of whomever is found in possession, after notifying perso~ of levy or attachment, without liability on the part of such deputy=or the shedff to any plaintiff herein fo~ any loss, destruction, or removal of any property before sheriffs sale thereof. g. TYPE NAM E and ADDRESS of AI-FORNEY / ORIGINATOR and SIGNATURE HARTSON, DEARDORFF WILLIAMS & OTTO 1/I F HTP~H C;T (~AI)I ic~l F P,~ 17nlq 12. SEND NOTICE OF SERVIbE C0PY TO NAMI~ ANO AD~I~E S~; ~ELOW: ('rhis area must be oomph)ted if notice is to be mai~ CUHBERLAND CO. SHERIFF 10. TELEPHONE NUMBER 11. DATEFILED 243-3341 r 1-8-02 13. lac~mowledgereceiptofthewrit R. AHRENS (x comlWaint as indicated above. 14. DATE RECEIVED 1-11-02 15' ~tm7 _%h;aring Date 16. HOWSERVED: PERSONAL( ) RESIDENCES) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. [3 I hereby certify and return a NOT FOUND because'l am unable to locate the individual, company, etc. named above. (See remarks below.) 41. AFFIRMED and subscribed to before rne this 16 SO ANSWERS , , 4-4. Signature of .I Ci~/ofYork, YorkC~n~ ___ I co..~s,.. ~~~.fr 1-16-02 ~// ~j~~ FOR WILLIAM M. HOSE~ /~/~ ~ ~ / ~ /J~ /~ 48. SignatumofFom)gn ~ ~ 49. DATE ~0. m AC~O~EDG~R~E[P~OF THE ~H ~RI~ ~ETU~N SIGNATURE m51, CATE RECEIVED OF AUTHOR~ED ISSUING AUTHOR(~ AND~ITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sher~s Office 2of2 COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ John Gross & Cu¥,pany Inc 3 DEFENDANT/~ SERVICE CALL (717) 771-9601 CO T ER. . 4. TYPE OF WRIT OR COMPLAINT Gary Bentzel et al Notice and Ccmplaint SERVE AT 5. NAME OF IND~IDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Dutch Country Restaurant 6. ADDRESS (S'I~EET OR RFO WI'IH BOX NUMBER, APT. NO., CITY, BORO, I~NP., STATE AND ZIP CODE) 946 Baltimore Street Hanover, PA 17331 7, INDICATE SERVICE; OPERSONAE O PERSON IN CHARGE X~DEPUTIZE (~C.~.._Ei~_~_I~__~.~~ OISTCLASSMAJl. OPOSTED E)OTHER NOW January 10 ,20 02 I, SHERIFF OF ~ COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execut~~akeT_~.~_~,,~ ~,.~return thereof according to law. This depuflzation being made at the request and dsk of the plaintiff. Ct~nb~rland 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WiLL ASSIST IN EXPEDITING SERVICE: OUT 0!; -COUNTY: ~ CUMBERt. AND ADVANCED FEI:PAID BY ~HERTFF NOTE: ONLY APPUCABLE ON WRIT OF ~CUTI~: ~ WAI~ER OF WATCHMAN - Any deputy sherth levying upon o~ attaching any property under within writ may leave same without a watchman, in custody of whomeve~ is found in p(mses~o~, after notifying person of mew or attachment, without liability on the part of such deputy or the sheriff to any plainl~ff 9. TYPENAMEandADORESSofATTORNEYIORIGINATORandSIGNATURE 243-3341 I 1-8-02 MARTSON DEARDORFF WILLIAM S& OTTO 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOV~ (This a~a must be completed if notice is to be mailed). CUMBERLAND CO. SHERIFF 13. I ackno~e receipt of them~it or complaint as indicated above. PERSONAL(~ RESlDENCE('~ POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 16. HOW SERVED: 23. Advance Costs 24. SenriceCosts 25. N/F 26. Mk~ge' 27. P~utage 28. SubTofal 29. Pound 30. Notap/ 31.Surchg. 32. ToLC~t~[33. CestsDuee~Refu~ Checkfl( I .2 ~a~of JANUARY · - : '-~ ' pROTHVvC~lOTllll:~,~'$ignatureofy~ · //-/ ~. ~ J47. OATE ! '~:,i~L~dSA~!~.~.-..~m~,~I~IFDR WILLI:AM M. HOSE ~ ~.. ~m~-'-/.'~'~-- I 1-16-02 OF ~UTHOR~ED ISSUING Am~ ~E m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW PRELIMINARY OBJECTIONS Now come, this o~day of ~, 2002, the Defendants, Garry Bentzel and Dutch Country Restaurant, Inc., by their attorneys, Menges, Gent & McLaughlin, LLP, and file the within Preliminary Objections to the Plaintiff's Complaint, to wit: 1. The Plaintiff's Complaint identifies Garry Bentzel as an adult individual. 2. The Plaintiff's Complaint identifies the Defendant, Dutch Country Restaurant, Inc., as a corporate business. 3. The Plaintiff's Complaint identifies Garry L. Bentzel as president of the Corporate Defendant. The Plaintiff's Complaint alleges that the Corporate Defendant submitted a "credit application signed by Garry L. Bentzel, president..." to the Plaintiff. 4. The Plaintiff's Complaint alleges that the Plaintiff provided goods and services to the corporate entity between July 10, 1996 and April 4, 2000. 5. The place of business of the Corporate Defendant is identified in the Complaint as being in York County, Pennsylvania. 6. The resident address of the individual Defendant is identified as being in York County, Pennsylvania. IMPROPER VENUE 7. Paragraphs 1 through 6 are incorporated herein by reference as though set forth in full. 8. Pa.R.C.P. establish venue. 9. 10. 106(a) and Pa.R.C.P. 2179(a) provide the specific requirements to The Plaintiff's Complaint was filed in Cumberland County. The Plaintiff's Complaint fails to allege that the cause of action arose, or a transaction or occurrence took place out of which the cause of action arose in Cumberland County. The Plaintiff's Complaint also fails to allege that the Corporate Defendant maintains its registered or principal place of business in Cumberland County or that it regularly conducts business in Cumberland County. 11. The Plaintiff's Complaint fails to allege that the individual Defendant resides in Cumberland County or has any other connection to Cumberland County upon which to base venue under the aforesaid Rules. 12. Venue of both Defendants does not lie in Cumberland County. WHEREFORE, the Defendants respectfully request the Honorable Court to grant their Preliminary Objections and dismiss the Complaint of the Plaintiff for improper venue. IMPROPER SERVICE 13. Paragraphs 1 through 12 are incorporated herein by reference as though set forth in full. 14. The Plaintiff's action was commenced by the filing of a Complaint on or about January 8, 2002. 15. The Plaintiff's Complaint has attached to it a Certificate of Service executed by one, Melinda A. Hall, who represents herself to be an authorized agent for the law firm of the Plaintiff. The Certificate of Service states that service was made by depositing a copy of the Complaint in the post office at Carlisle, Pennsylvania, first class mail, postage pre-paid, addressed to the Defendants at the addresses set forth in the Complaint. 16. Pa.R.C.P. 400(a) states that original process "shall be served within the Commonwealth only by the sheriff." 17. None of the exceptions under Rule 400 or Rules 400.1 through 425 apply. 18. At no time did the Plaintiff provide for service of the Complaint by the sheriff of either Cumberland County or York County. WHEREFORE, the Defendants respectfully request the Honorable Court to grant their Preliminary Objections and dismiss the Plaintiff's Complaint for failure to properly serve the Defendants. INSUFFICIENT SPECIFICITY AND A FAILURE TO CONFORM TO LAW OR RULE OF COURT Paragraphs 1 through 18 are incorporated herein by reference as though set forth 19. in full. 20. The Plaintiff's Complaint appears to be a claim for a debt owed based upon some type of a contractual obligation. 21. Pa.R.C.P. 1019(h) requires that any claim based upon an agreement shall state specifically if the agreement is oral or written. 22. The Plaintiff's Complaint fails to state whether an agreement actually exists between the Plaintiff and the Defendants and, if so, whether the same is oral or written. 23. The mere allegation of a credit application having been received does not constitute a contractual agreement between the parties. 24. Pa.R.C.P. 1019(i) states that when any claim is based upon a writing, a copy of the writing or the material part thereof must be attached to the complaint. 25. The Plaintiff has failed to attach to its Complaint a copy of any written documentation evidencing any agreement between the parties. If the Plaintiff is relying upon the alleged credit application, a copy of the same has not been attached to the Complaint. WHEREFORE, the Defendants respectfully request the Honorable Court to dismiss the Plaintiff's Complaint for failure to conform to the applicable Pennsylvania Rules of Civil Procedure and for lack of sufficient specificity. DEMURRER 26. Paragraphs 1 through 25 are incorporated herein by reference as though set forth in full. 27. The individual Defendant, Garry Bentzel (hereinafter Bentzel) is identified as an adult individual. 28. The Plaintiff asks for judgment to be entered against Bentzel as an individual. 29. The Plaintiff's Complaint in Paragraph 5 only states that the Plaintiff "provided goods and services to the entity known as Dutch Country Restaurant" and does not allege either directly or indirectly that any services or goods were provided to Bentzel as an individual. 30. The business entity is a corporation. 31. The Plaintiff fails to allege in its Complaint any facts supporting any legally recognized basis on which to hold Bentzel liable for an obligation of the corporation. WItEREFORE, the Defendant, Garry Bentzel, respectfully requests the Honorable Court to dismiss the Plaintiff's Complaint, with prejudice, as against him. Respectfully submitted, MENGES, GENT & McLAUGHLIN, LLP Sup. Ct. I.D. No. 29964 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned, being duly sworn, does hereby state that a true and correct copy of Defendants' Preliminary Objections was served upon the following at the address indicated below, via regular, first-class, postage pre-paid mail, on August o~,7~, 2002. George B. Faller, Jr., Esquire I0 E. High Street Carlisle, PA 17013-3093 Menges, Gent and McLaughlin, LLP Sup. Ct. I.D. #29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants JOHN GROSS & COMPANY, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED 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 Plaintiffs. 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 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Date: George B. Failer, Jr., Esquire ID Number 49813 Carl C. Risch, Esquire ID Number 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff John Gross & Company, Inc. JOHN GROSS & COMPANY, INC., Plaimiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY : RESTAURANT, INC., Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED FIRST AMENDED COMPLAINT AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff, John Gross & Company, Inc., is a Pennsylvania corporation with a principal place of business at 400 Cheryl Avenue, Mechamcsburg, Cumberland County, Pennsylvania 17055. 2. The Defendants, Garry L. Bentzel and Ruby A. Bentzel, are adult individuals residing at 1031 Beir Road, Hanover, Pennsylvania 17231 who trade and do business under the fictitious name Dutch CounUy Restaurant. 3. The Defendant, Dutch Country Restaurant, Inc., is a business entity located at 946 Baltimore Street, Hanover, Pennsylvania 17331. 4. On July 10, 1996 Plaintiffs received a credit application signed by Garry L. Bentzel, President of Dutch Country Restaurant, Inc., and, simultaneously, from Gany L. Bentzel t/d/b/a Dutch Country Restaurant, a registered fictitious name co-owned with Ruby A. Bentzel. A copy of the credit application is attached hereto as Exhibit A. 5. From July 10, 1996 up until April 4, 2000, the Plaintiffpmvided goods and services to the entity known as Dutch Country Restaurant. As of April of 2000, there was an outstanding balance on the account of $16,126.51. 6. On or about April 1,2000, Plaintiffbelieves, and therefore avers, that Defendants and Sam Taylor Enterprises, Inc. entered into an Agreement of Sale whereby Defendants agreed to sell a restaurant to Sam Taylor Enterprises, Inc. upon payment of $200,000.00 amortized over a 5 year period during which time Sam Taylor Enterprises, Inc. would manage the restaurant. 7. On April 4, 2000, Plaintiffreceived a credit application signed by Melissa A. Spalla, Vice President of SamTaylor Enterprises, Inc. d/b/aDutch Country Restaurant. Acopyofthe credit application is attached hereto as Exhibit B. 8. On April 4, 2000, Defendants Gan'y L. and Ruby A. Bentzel were the owners of the fictitious name "Dutch Count~ Restaurant" and continue to be the owners of this fictitious name. 9. Additional payments were made on the account which reduced the balance due to $8,644.80, plus interest and penalties of $1,479.23, for a total of $10,124.03 as of June 26, 2001. 10. From April 5, 2000 until June 26, 2001, the Plaintiff provided goods and services to the Dutch Country Restaurant at the request of Sam Taylor Enterprises, Inc. As of June 26, 2001, there was an outstanding balance on this account of $31,762.38, plus interest and penalties of $6,905.16, for a total of $38,667.54, in addition to the $10,124.03 directly arranged by Defendants. 11. Under the Agreement of Sale, Defendants remained the owners of the Dutch Country Restaurant, retained rights to inspect, manage, and work for the business, and preserved the right to retake possession of the business upon default by Sam Taylor Enterprises, Inc. 12. During its period of involvement, Sam Taylor Enterprises, Inc. and its owners, Sam and Melissa Spalla, acted in agency capacities for Defendants, the true owners of the business and fictitious name, in contracting for goods and services for the Dutch Country Restaurant from Plaintiff 13. On or about September 2001, Defendants retook possession of the business pursuant to a default under the Agreement of Sale and retained as liquidated damages all payments made by Sam Taylor Enterprises, Inc. thus far. 14. Both credit applications clearly indicate that John Gross & Company, Inc. is located in Cumberland County, Pennsylvania, and all payments made by Defendants on their account were received in Cumberland County, Pennsylvama, under the agreement between the parties. 15. Both credit applications indicate that Plaintiff is entitled to reasonable attomey's fees and costs if the accounts are turned over for collection. 16. Despite repeated demand, no payment has been made by the Defendants for amounts due. COUNT 1 - BREACH OF CONTRACT 17. Plaintiffhereby incorporates by reference the averments contained in paragraphs 1 through 16 as if fully set forth. 18. Defendants have breached an expressed or implied agreement, directly or through agents, to pay for the goods and services provided to the Dutch Country Restaurant. WHEREFORE, PlalntilT, John Gross & Company, Inc., demands judgment against the Defendants in the amount of $48,791.57, plus attorneys fees and costs. COUNT II - QUANTUM MERUIT 19. Plaintiffhereby incorporates by reference the averments contained in paragraphs 1 through 18 as if fully set forth. 20. The Defendants are liable to the Plaintiffand/or have been unjustly enriched in the amount of $48,791.57. WHEREFORE, Plaintiffdemands judgment against Defendants in the amount of $48,791.57, plus pre-judgment and post-judgment interest, costs, and attorneys fees. Date: September 6, 2002 By!MARTS~LIAMS & OTTO George'~][. F~er, ,~r.~Es'q~e ID Number 49813 Carl C. Risch, Esquire ID Number 75901 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff John Gross & Company, Inc. Exhibit A JOHN GROSS & CO., INC. 308 Cheryl Ave., P.O. Box 1189 Mechanicsburg, PA 17055 (717) 766-2508 800-368-6800 CREDIT APPLICATION AND AGREEMENT TRADE NAME (DBA) ~"~ ~ ~M~ 7L/,"'/ /¢C,5'/pa~?'~-.~ ~ LEGAL COMPANY NAME ~ u ~' ,~ ~ 0 ~.,~4 i/3'"'~ /~P~ ~z,.~ ?._.~.~./~ ~ ~. / Please check one of the following: [~'oorporation registered to do business in PA ~ Sole proprietorship ~ Partnership LENGTH OF TIME IN BUSINESS /~t/F"G//5 ~ DO you: [~wn [~ Rent 5 Currently purchasing property APPROXIMATE CREDIT REQUIREMENTS $ Per PENNSYLVANIA SALES TAX EXEMPTION NUMBER: If you hold a valid Pennsylvania Blanket Sales Tax Exemption Certificate, please attach executed form REV 1220: Exemption Certificate. BUSINESS ADDRESS: SHIPPING . BILLING Address ? _~ ~:~p../7z ,'/'~ r_Pf"~ ~// Address .-~"~ ,~ C-- PO Box # Zip / 7.~.~ ./' Bus. P/hone #_( ?/, F~ ~_{__) Merchandise receiving hours City, State Zip FAX #_( ) Bus. Phone #_( ). Special delivery instructions: NAMES, ADDRESSES, PHONE NUMBERS OF ALL OWNERS/PARTNERS: Name ~,~.~'Y' Y' (;~ }~U ~ Y~ ~ ~ ~/ / How long have you resided at this location? ~ ~ ~/ ~ ~ Name Social Securi~ # /'~'7"30 '- ~'~"~/' Home Phone #_(~),~) Social Security # Home Address How long have you resided at this location? Name Home Address Home Phone #_( Social Security # How long have you resided at this location? --OVER-- Home Phone #_( ) REFERENCES: Name, Address and Telephone Bank(s) /~"P-~',.~ ,e~.~ <~ Suppliers: 1. /~-"-~ e Account If , 5'~ ~--__,,,/(j()() _(~//~_ Account ~f() c2 / '?0 / In consideration for the extension of credit and intending to be legally bound hereby, the undersigned Buyer hereby agrees that the following terms will govern any charge account established by John Gross & Co. (Seller) for Buyer's benefit. 1. Payment. Buyer hereby agrees to pay the Time Sale Price of purchases charged to Buyer's account. The Time Sale Price shall consist of the cash sale price, including applicable sales taxes and delivery charges, if any, plus service charges and any finance charge which may accrue pursuant to paragraph two (2) hereunder. 2. Past Due Accounts. Buyer hereby agrees that interest charges of 1½ % per month or 18% per annum will be assessed on any account balance which is not satisfied within 30 days of the Billing Date. 3. Sel/er's remedies. In the case of Buyer's Default, Buyer's entire account balance shall become due and payable. Seller's waiver of any Default shall not operate as a waiver of any other Default. If Buyer's account is referred for collection to any attorney, Buyer will pay, to the extent permitted by law, reasonable attorney's fees and court costs incurred. 4. Se~leKs Discretion. The extension of temporary credit pursuant to this Agreement is within Seller's sole discretion and Seller may terminate this Agreement at any time and for any' reason. 5. Credit Check. Buyer hereby authorizes the firms and banking institutions listed above to furnish any information request- ed by Seller to process this application; and Buyer agrees that neither those firms nor their employees shall be liable for any claim of damages as a result of furnishing the requested information. Business name: ~?c) t~-- ~Z~" Authorized Representative of Applicant: Signature ~/~/' ~ Print Signed Name ~~,/ Date ~.Y~ /~ Sales Person Level Type Account Special Instructions Terms Limit Approved By Exhibit B CREDIT APPLICATION AND AGREEMENT Please check one of the following: U ~ J~Corporation registered to do business in PA (~ Sole proprietorship [~ Partnership LENGTH OF TIME OPERATING/OWNING THIS ESTABLISHMENT: Do you: I~ Own J~ Rent [~ Currently purchasing property APPROXIMATE CREDIT REQUIREMENTS $ Per PENNSYLVANIA SALES TAX EXEMPTION NUMBER: If you hold a valid Pennsylvania Blanket Sales Tax Exemption Certificate, please attach executed form REV 1220: Exemption Certificate. BUSINESS ADDRESS SHIPPING BILLING Contact name:~ Address PO Box # City, State ~'~,~rlC~uE r'- ,. ~/~f'-- City, State Zip ! ~--~ / Bus. Phone #_("~f'~)~ Zip FAX~_(--~'/7-) ~j~ '~ - 4/~:~ FAX#_( Merchandise receiving hours ~~~_~ Special delivery instructions: Bus. Phone ~_.( ) NAMES, ADDRESSES, PHONE NUMBERS OF ALL OWNERS/PARTNERS: Name J/~(~ (t' ~,~C'~· Home Address /~-5~ ~-'~C~F"~'.-~' How long have you resided at this location? Home Address / How long have you resided at this location? Name Social Security ~_ ~._~. 0 Home Phone #_( socia Security Home Phone #_(~/~) Social Security -tome Address ~ow long have you resided at this location? I OVER-- Home Phone #_( ). REFERENCES: Name, Address and T.~.Lephone #: Bank(s) ¢"-~O le ~ ~_~ ~/¢~- '/~ ~ k Account Account In consideration for the extension of credit and intending to be legally bound hereby, ~e undersigned Buyer hereby agrees that the following terms will govern any charge account established by John Gross & Co. (Seller) for Buyer's benefit. 1. Payment. Buyer hereby agrees to pay the 'Rme Sale Price of purchases charged to Buyer's account. The ~me Sale Price shall consist of the cash sale price, including applicable sales taxes and delivery charges, if any, plus service charges and any finance charge which may accrue pursuant to paragraph two (2) hereunder. 2. Past Due Accounts. Buyer hereby agrees that interest charges of 1½ % per month or 18% per annum will be assessed on any account balance which is not satisfied within 30 days of the Billing Date. 3. Seller's remedies. In the case of Buyer's Default, Buyer's entire account balance shall become due and payable. Seller's waiver of any Default shall not operate as a waiver of any other Default. If Buyer's account is referred for collection to any attorney, Buyer will pay, to the extent permitted by law, reasonable attorney's fees and court costs incurred. 4. Seller'S Discretion. The extension of temporary credit pursuant to this Agreement is within Seller's sole discretion and Seller may terminate this Agreement at any time and for any reason. 5. Credit Check. Buyer hereby authorizes the firms and banking institutions listed above to furnish any information request- ed by Seller to process this application; and Buyer agrees that neither those firms nor their employees shall be liable for any claim of damages as a result of furnishing the requested information. Print Signed Name ~/~ ~ l i~'~,.~ o te Business name: ~ ~--'-'~ ~L--f?~_~f-~,l,'(j~_~. ~, Authorized Representative of Applicant: _- ~~~ Signature ~~ ~'~~ ' OFFICE USE ONLY: Sales Person Level Type Account Terms Limit Special Instructions Approved By Tho foregoing Complaint is baser upon iaformalion which lass bee~ gathered by Iny counsel in th~ px~paratlon of the lawsuit, The language of tha documant is that of couusel and not my own, I have read thc doomacat and to th~ cxtcnt thai it is based upon information whicll I }laYe giveax to my cotm$ol, it is tree and correct to thobcst of my knowledge, infom'mtion an~ boiler. To ~he extent that tho contoat of the docummt is that of co*uascl, I ha¥~ relied upcm oo~u~l in making this vedt~catiom This statcmcnt and virific, allon are mad~ sttbjoct to tho pcnaBic$ of 18 Pa. C.S. St:etlon 4904 r¢l~tlr~ to ,,n.~wom fudsificati~m to aathorities, which provides itmt if I make lmovdngly false avtament.% Inlay bc s~t'ojcct to criminal pe~alties. CERTIFICATE OF SERVICE. I, Carl C. Risch, hereby certify that a copy of the foregoing First Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 MAR~~WILLIAMS & OTTO By ~,_ ~__....~_,)(-ffi ~ Carl'CT, Rl~ch Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: (~/(,,/0'?-- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S FIRST AMENDED COMPLAINT come, this /~6~day of / ,~~ , 2002, the Defendants, Garry Now L. Bentzel and Ruby A. Bentzel as adult individuals and Dutch Country Restaurant, Inc., by their attorneys, Menges, Gent & McLaughlin, LLP, and file the within Preliminary Objections to the Plaintiff's First Amended Complaint, to wit: 1. The Plaintiff's First Amended Complaint identifies Garry L. Bentzel and Ruby A. Bentzel as adult individuals. 2. The Plaintiff's First Amended Complaint identifies the Defendant, Dutch Country Restaurant, Inc., as a corporate business. 3. The Plaintiff's First Amended Complaint identifies Garry L. Bentzel as president of the Corporate Defendant. The Plaintiff's First Amended Complaint alleges that the Corporate Defendant submitted a "credit application signed by Garry L. Bentzel, president . . ." to the Plaintiff. 4. Paragraph 4 of the Plaintiff's First Amended Complaint alleges that simultaneously with submission of a credit application by the corporate Defendant, Garry L. Bentzel tYd/b/a Dutch Country Restaurant submitted a credit application and/or signed the corporate credit application, presumably in his individual capacity. Exhibit "A" of the Plaintiff's First Amended Complaint purports to be a copy of the credit application submitted by both the corporate Defendant and Garry L. Bentzel t/d/b/a Dutch Country Restaurant. 5. Thc Plaintiffs First Amended Complaint alleges that the Plaintiff provided goods and services to "...the entity known as Dutch Country Restaurant" between July 10, 1996 and April 4, 2000. 6. The place of business of the Corporate Defendant is identified in the First Amended Complaint as being in York County, Pennsylvania. 7. The resident address of the aduR individual Defendants is identified as being in York County, Pennsylvania. 8. The Plaintiff's First Amended Complaint alleges that the Defendants, as a group, entered into an Agreement of Sale to sell the restaurant business to Sam Taylor Enterprises, Inc. It is further alleged that Sam Taylor Enterprises, Inc. d/b/a Dutch Country Restaurant filed a credit application with the Plaintiff. 9. Paragraph 11 of the Plaintiff's First Amended Complaint alleges that the Defendants "remained the owners of thc Dutch Country Restaurant...". 10. Paragraph 12 of the Plaintiff's First Amended Complaint alleges generally that Sam Taylor Enterprises, Inc. and its owners, Sam and Melissa Spalla, acted as agents for the Defendants in contracting for goods and services from the Plaintiff. 11. Count I of the Plaintiff's First Amended Complaint alleges a breach of the contract by the Defendants as a group through their alleged agents, Sam Taylor Enterprises, Inc. and Sam and Melissa Spalla. 12. Count II of the Plaintiffs First Amended Complaint seeks relief from the Defendants under the doctrine of quantum meruit. IMPROPER VENUE 13. Paragraphs 1 through 12 are incorporated herein by reference as though set forth in full. 14. Pa.R.C.P. 106(a) and Pa.R.C.P. 2179(a) provide the specific requirements to establish venue. 15. The Plaintiff's First Amended Complaint was filed in Cumberland County. 16. The Plaintiff's First Amended Complaint fails to allege that the cause of action arose, or a transaction or occurrence took place out of which the cause of action arose in Cumberland County. The Plaintiff's First Amended Complaint also fails to allege that the Corporate Defendant maintains its registered or principal place of business in Cumberland County or that it regularly conducts business in Cumberland County. 17. The Plaintiffs First Amended Complaint fails to allege that the individual Defendants reside in Cumberland County or has any other connection to Cumberland County upon which to base venue under the aforesaid Rules. 18. Venue of all Defendants does not lie in Cumberland County. WHEREFORE, the Defendants respectfully request the Honorable Court to grant their Preliminary Objections and dismiss the First Amended Complaint of the Plaintiff for improper venue. in full. 19. INSUFFICIENT SPECIFICITY AND A FAILURE TO CONFORM TO LAW OR RULE OF COURT Paragraphs 1 through 18 are incorporated herein by reference as though set forth 20. The Pla'mtiff's First Amended Complaint appears to be a claim for a debt owed based upon some type of a contractual obligation. 21. Pa.R.C.P. 1019(h) requires that any claim based upon an agreement shall state specifically if the agreement is oral or written. 22. The Plaintiff's First Amended Complaint fails to state whether an agreement actually exists between the Plaintiff and the Defendants and, if so, whether the same is oral or written. 23. Plaintiff's Neither the mere allegation of a credit application, nor attaching the same to the First Amended Complaint, constitutes a contractual agreement between the Defendants and the Plaintiff for the purchase and provision of goods and services upon which the Plaintiff's claim can be based. Exhibit "A", the Defendants credit application, merely contains terms and conditions relating to the extension of credit. The First Amended Complaint fails to allege the existence of an agreement to purchase goods and services, whether the same is oral or written, and if written, to attach a copy thereof in accordance with Pa.R.C.P. 1019(i). 24. The Plaintiff's First Amended Complaint now seeks to hold the Defendants liable for a substantially greater amount of money and debt incurred by Sam Taylor Enterprises, Inc. and/or Melissa A. Spalla and Sam Spalla. Plaintiff's First Amended Complaint seeks to hold the Defendants liable for said sums upon the allegation of agency pursuant to an Agreement of Sale between the Defendants and Sam Taylor Enterprises, Inc. 25. The Plaintiff has in its possession, or in its counsel's possession, a copy of the full Agreement of Sale upon which the Plaintiff alleges the agency relationship. The Plaintiff has failed to attach to its First Amended Complaint a copy of said Agreement or any portion thereof establishing agency. WHEREFORE, the Defendants respectfully request the Honorable Court to dismiss the PlaintifFs First Amended Complaint for failure to confoml to the applicable Pennsylvania Rules of Civil Procedure and for lack of sufficient specificity. FAILURE TO STATE A CAUSE OF ACTION 26. Paragraphs 1 through 25 are incorporated herein by reference as though set forth in full. 27. The Plaintiff's First Amended Complaint seeks to hold the Defendants liable for the purchase of goods and services by Sam Taylor Enterprises, Inc. and/or its owners Sam and Melissa Spalla who allegedly acted as agents for the Defendants. 28. The Plaintiffs First Amended Complaint fails to set forth any facts or cimumstances upon which to establish an agency relationship. 29. Pa.R.C.P. 1019 requires that the material facts on which the cause of action is based should be stated in a concise and summary from. However, a mere bald allegation of an agency relationship is insufficient under said Rule. 30. The credit application filed by Sam Taylor Enterprises, Inc., a copy of which is attached to the Plaintiff's First Amended Complaint as Exhibit "B" does not identify that Sam Taylor Enterprises, Inc. is acting as agent for the Defendants. WHEREFORE, the Defendants respectfully request this Court to dismiss Plaintiff's First Amended Complaint for failure to state a cause of action DEMURRER 31. Paragraphs 1 through 30 are incorporated herein by reference as though set forth in full. 32. The individual Defendants, Garry L. Bentzel and Ruby A. Bentzel (hereinafter referred to as (Bentzel) are identified as adult individuals. 33. The credit application upon which the Plaintiff relies in its First Amended Complaint is solely a credit application filed by the corporate Defendant. Said application clearly indicates that the corporate Defendant does business under the trade name "Dutch Country Restaurant". 34. The Plaintiff asks for judgment to be entered against Bentzels as individuals. 35. The Plaintiff's First Amended Complaint in Paragraph 5 only states that the Plaintiff "provided goods and services to the entity known as Dutch Country Restaurant" and does not allege either directly or indirectly that any services or goods were provided to Bentzels as individuals. 36. The business entity is a corporation. 37. The Plaintiff fails to allege in its First Amended Complaint any facts supporting any legally recognized basis on which to hold the Bentzels liable for an obligation of the corporation. 38. The Plaintiff's First Amended Complaint alleges that Sam Taylor Enterprises, Inc. and/or its owners Sam and Melissa Spalla, ordered goods and services between April 4, 2000 through June 26, 2001, as agents for the Defendants. The Plaintiff bases its allegation of agency on an Agreement of Sale between the Defendants and Sam Taylor Enterprises, Inc. 39. The Plaintiff has a copy of the Agreement of Sale in its possession. A copy of said Agreement is attached hereto and incorporated herein by reference as though set forth in full. 40. The Agreement of Sale does not directly or indirectly identify Sam Taylor Enterprises for Sam and Melissa Spalla as agents for the Defendants. 41. The Agreement is solely between Dutch Country Restaurant, Inc. and does not involve the individual Defendants. 42. The Agreement of Sale is a complete and full sale of all of the assets of the corporate Defendant to Sam Taylor Enterprises, Inc. and Samuel B. and Melissa A. Spalla. 43. The mere retention by the corporate Defendant of the right to pursue various remedies in the event of default of the monthly payments does not constitute an agency relationship nor any continued ownership of the business by the corporate Defendant let alone the individual Defendants. 44. Paragraph 4 of the Agreement of Sale clearly establishes that Sam Taylor Enterprises, Inc. and the Spallas took over the operation of the business as of January 1, 2000. 45. Paragraph 13 of the Agreement of Sale establishes that the business name was transferred to Sam Taylor Enterprises, Inc. and/or the Spallas. 46. The Plaintiff's First Amended Complaint admits in paragraph 10 that all of the goods and services provided from April 5, 2000 until June 26, 2001, were provided "at the request of Sam Taylor Enterprises, Inc." WHEREFORE, the individual Defendants, respectfully request the Honorable Court to dismiss the Plaintiff's First Amended Complaint against them, with prejudice. Further, the individual Defendants and the corporate Defendant respectfully request the Honorable Court to dismiss the Plaintiff's First Amended Complaint with respect to all sums for which the Plaintiff seeks recovery that arose from doing business with Sam Taylor Enterprises Inc. from April 5, 2000 through and including June 26, 2001. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION IN THE NATURE OF QUANTUM MERUIT UPON WHICH RELIEF CAN BE GRANTED. in full. 47. Paragraphs 1 through 46 are incorporated herein by reference as though set forth 48. Paragraph 10 of the Plaintiff's First Amended Complaint alleges that all goods and services provided to the restaurant were from April 5, 2000 until June 26, 2001 and were at the request of Sam Taylor Enterprises, Inc. 49. Plaintiff fails to allege any facts to show in any fashion how the Defendants have been unjustly enriched by the provision of goods and services by the Plaintiff to Sam Taylor Enterprises, Inc. . 50. The Plaintiff has failed to allege any facts that support or tend to support the required elements to establish quantum meruit. WHEREFORE, the individual Defendants and the corporate Defendant, respectfully request the Honorable Court to dismiss Count II of the Plaintiff's First Amended Complaint. Respectfully submitted, MENGES, GENT & McLAUGHL1N, LLP B D~as ~. Gent, Esquire Sup. Ct. I'D. No. 29964 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and RUBY A. BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned, being duly sworn, does hereby state that a tree and correct copy of Defendants' Preliminary Objections to Plaintiff's First Amended Complaint was served upon the following at the address indicated below, via regular, first-class, postage pre-paid mail, on September 14, 2002. George B. Failer, Jr., Esquire 10 E. High Street Carlisle, PA 17013-3093 Sup. Ct. I.D. #29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and s,,~-~itted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]~t the within matter for the next Ar~3~ent Court. CAPTION OF CASE (entime capti~ must be state~ in b,]]) JOHN GROSS & COMPANY, INC. ( pi aintiff ) GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC. ( Deferment ) No. 02 Civil 103 ~ 2002 e State matter to be argued (i.e., plaintiff's ,~tion for new ~, ;mi, defem4~t's d~,'~£=r to c~p]a~nt, etc. ): Defendants' Preliminary Objections to Plaintiff's First Amended Complaint identify counselwhowi]] argue case: (a) for plaintiff: ~kk-ess: Carl C. Risch, Esquire Ten East High Street Carlisle, PA 17013 (b) for defendant: Douglas H. Gent, Esquire 1157 Eichelberger Street Hanover, PA 17331 3. I will notify ~ll parties in writing within two days that tbi~ case nas k~--~n 1 ~ -~t~ for argu~-nt. 4. ~t Court Date: October 23, 2002 rmt~d: September 26, 2002 Attorney for Plaintiff SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00103 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JOHN GROSS & COMPANy INC VS BENTZEL GARY ET AL R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT BENTZEL RUBY A TDBA DUTCH but was unable to locate Her deputized the sheriff of YORK serve Sheriff or Deputy Sheriff who being says, that he made a diligent search and to wit: He therefore Pennsylvania, COUNTRY RESTAURANT in his bailiwick. County, the within COMPLAINT & NOTICE to On ~tember 24th , 2002 , this office was in receipt of the attached return from YORK Sheriff,s Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 36.43 .00 73.43 09/24/2002 MDW&O R(. Thomas Kline ~ Sheriff of Cumberland County Sworn and subscribed to before me this V~ day of O~E~g~,.,' ~.2.~ A.D. Prothonot&~y/ YORKTOWNE BUSINESS FOMRS · (717) 225-0363 · FAX (717) 225-0367 COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST, YORK, PA 17401 SERVICE CALL (717) 771-9601 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 PLAINTIFF/S/ INSTRUCTIONS PLEASE TYPE ONLY LINE I THRU 12 DO NOT DETACH ANY C~P--'~S J. 2. COURT NUMBER John Gross & Ccr~pany Inc. 02-103 civil (02-103) 3 DEFENDANT/S/ ~4 TYPE OF WRIT OR COMPLAINT Garry L. Bentzel et al Notice & Complaint SERVE /' 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVI i .,~ Ruby A. Bentzel t/d/b/a Dutch Cot.m'- _ , ED, A~fACHED, ORSOLD. ~ -- COUNTY to exe ' d.e~u, tJ~e the sheriff of to law. This de utization ' . cute:~J~,is ~[i~n' .Aa ~ret · P be,nc made at the request and r,sk of the plaintiff. 8 SPECIAL INSTRUCTIONS OR OTHER INFORMATION ~.,AT WILL ASSIST IN EXPEDITING SERVICE: Cumberland OUT OF COUNTY ADVANCED FEE PAID BY SHERIFF CUMBERLAND NOTE: ON~ APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any prope~y under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liabiliiy on herein for any loss, destruction, or removal of any properiy before sheriff's sale thereof· the part of such deputy or the sheriff to any plaintiff 9 TYPE NAME and ADDRESS of A~'ORNEY / ORIGINATOR and SIGNATURE I10 TELEPHONE NUMBER I 11. DATEFILED GEORGE B. FALLER, JR. & CARL C. RZSCH 10 E. HIGH ST, 243-3341 12. SEND NOTICE OF SE ~'ADI T~I ~- RVICE COPY TO NAME AND AD ~' ...... PA -~n~o 9-6-02 CUHBERLAND CO. SHERIFF DRESS BELOW. ~'~lsareamus~becomple~e~i¥'n'~ceistobemailed). SPACE BELOW FOR USE OF THE SHERIFF ~ DO NOT WRITE BELOW THIS LINE ATE RECEIVED 15. Expiration/Heedng Date 13. I acknowledge receipt of the wdt or complaint as indicated above. R. AHRENS 16 N~OWSERVED: PERSONAL ( ) RESIDEN~TED ( ) POE ( ) SHERIFF'S OFFI 17 [2 I hereby certify and return a NOT FOUN~d~v dual c-~--~- --- ~MbNIPP'5 OFFICE ( )_ OTHER ( ) SEE REMARKS BELOW · , umpany, e[c name above. (See remarks below.) 18. NC~E AND TITLE O,E INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant 2~. A~d~ance Costs J Service Costs J 25. N/F J 26 Mileage J27. Postage 28. Sub Total 9. Pound 30. Notary 3f Surchg. 32 Tot. Costs 33 Costs Due ~1~'74~ 41 AFFIRMED and subscribed to before me this .~_~Lg~ 42. day of My 47 DATE 50. IA · WHITE - Issumg Au/ho 2 PI fy NK Attorney 3. CANARY - Sheriffs Office 4 BLUE - Sheriff's Office JOHN GROSS & ' COMPANY, INC., : Plaintiff : Vo GARRY L. BENTZEL and: RUBY A. BENTZEL, : t/d/b/a DUTCH COUNTRY RESTAURANT, and : DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW · NO. 02-103 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S FIRST AMENDED COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this I~ ~ day of November, 2002, upon consideration of Defendants' preliminary objections to Plaintiff's first amended complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied and Defendants are granted twenty days within which to file an answer to the first amended complaint. /George B. Faller, Jr., Esq. Carl C. Risch, Esq. Ten East High Street Carlisle, PA 17013-3093 Attorneys for Plaintiff BY THE COURT, /.. (esley Olor,~., J. ~ ,/l~uglas H. Gent, Esq. 1157 Eichelberger Street Hanover, PA 17331 Attorney for Defendants JOHN GROSS & COMPANY, INC., Plaintiff V. GARRY L. BENTZEL and: RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and : DUTCH COUNTRY : RESTAURANT, INC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 CIVIL TERM IN RE: DEFENDANT,S PRELIMINARY OBJECTIONS TO PLAINTIFF'S FIRST AMENDED COMPLAINT BEFORE HOFFER, p.j., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., November ,2002. For disposition in this breach of contract and quantum meruit case are preliminary objections of Defendants to Plaintiff's first amended complaint. The preliminary objections raise issues of legal sufficiency, venue, specificity, and conformity to rules of court. For the reasons stated in this opinion, Defendants' preliminary objections will be denied. STATEMENT OF FACTS For present purposes, the record in the case consists of Plaintiff's first amended complaint and Defendants' preliminary objections to the first amended complaint.~ The allegations of PlaintiWs first amended complaint may be summarized as follows: Plaintiff is John Gross & Company, Inc., a Pennsylvania corporation with its principal place of business at 400 Cheryl Avenue, Mechanicsburg, Cumberland ~ Defendants' preliminary objections did not contain a notice to plead and no answer was filed to the preliminary objections. County, Pennsylvania.2 Defendants Garry L. Bentzel and Ruby A. Bentzel are adult individuals residing at 1031 Beir Road, Hanover [York County], Pennsylvania.3 In their individual capacities they are registered owners of the fictitious name "Dutch Country Restaurant? Defendant Dutch Country Restaurant, Inc., is a business entity located at 946 Baltimore Street, Hanover [York County], Pennsylvania.5 Plaintiff is in the business of supplying goods and services to restaurants.6 On July 10, 1996, Plaintiff received a written "Credit Application and Agreement" executed by Defendant Garry L. Bentzel.7 A copy of this document is attached to Plaintiff's first amended complaint.8 The "trade name" of the applicant was given on the application as "Dutch Country Restaurant.''9 The "legal company name" of the applicant was given as Dutch Country Restaurant Inc.'d° The "business name" of the applicant was given as "Dutch Country Restaurant?! The "owners/partners" of the applicant were given as "Garry & Ruby Bentzel.''12 The "authorized representative of applicant" was given as "Garry L. Bentzel.''~3 Mr. Bentzel's "title" was given as 2 Plaintiff's First Amended Complaint, filed Sept. 6, 2002, para. 1. 3 Id. para. 2. 4 Id. para. 8. 5Id. para. 3. 6 Id. para. 5. 71d. para. 4, Ex. A. aid. Ex.A. 91d. ~Oid' ll ld' 121d' ~3 Id. "president.''~4 The "business address" of the applicant was given as "946 Baltimore St., Hanover, Pa.''~5 Plaintiff began supplying goods and services to "Dutch Country Restaurant" on account? By April 1, 2000, Plaintiffwas owed $16,126.51 on the account. 17 On April 1, 2000, "Defendants" entered into an agreement of sale with Sam Taylor Enterprises, Inc., "whereby Defendants agreed to sell a restaurant to Sam Taylor Enterprises, Inc. upon payment of $200,000.00 amortized over a 5 year period during which time Sam Taylor Enterprises, Inc. would manage the restaurant.''is Under the agreement, "Defendants" retained rights to inspect, manage, work for, and retake possession of the business upon default? A copy of the agreement of sale is not attached to Plaintiff's first amended complaint, but Defendants are in possession of a copy? On April 4, 2000, Plaintiff received a written "Credit Application and Agreement" executed by one Melissa A. Spalla.2~ A copy of this document is attached to Plaintiff's first amended complaint.22 The "trade name" of the applicant was given on the application as "Dutch Country Restaurant.''23 The "legal company name" of the applicant was given as 14/d. 15 Id. Plaintiff's address was indicated as 308 Cheryl Ave., P.O. Box 1189, Mechanicsburg [Cumberland County], PA 17055. Id. 16 ~/d., paras. 4--5. ~7 Id. para. 5. 18Id. para. 6. ~91d. para. 11. 2o See Defendant's Preliminary Objections to PiaintiWs First Amended Complaint, filed Sept. 20, 2002, para. 39 (purporting to attach agreement of sale to preliminary objections). Defendants submitted an alleged copy of the agreement of sale to the prothonotary following oral argument. See Letter from Douglas G. Gent, Esq., to Office of the Prothonotary (Oct. 29, 2002) (requesting that enclosed copies of agreement be clocked in and distributed to argument court judges). 2~ PlaintiWs First Amended Complaint, filed Sept. 6, 2002, Ex. B. 2:2 "Sam Taylor Enterprises.''24 The "business name" of the applicant was given as "Sam Taylor Enterprises, Inc.''25 The "owners/partners" of the applicant were given as "Melissa Spalla" and "Sam Spalla.''26 The "authorized representative of applicant" was given as "Melissa A. Spalla.''27 Ms. Spalla's "title" was given as "V.P.''28 The "business address" of the applicant was given as "946 Baltimore St., Hanover, PA.''29 Sam Taylor Enterprises, Inc., and its stockholders acted in agency capacities for "Defendants, the true owners of the business and fictitious name, in contracting for goods and services for the Dutch Country Restaurant from Plaintiff.''3° By June 26, 2001, the debt owed to Plaintiff for goods and services provided to the restaurant totaled $48,791.57.31 "[A]ll payments made by Defendants on their account were received in Cumberland County" by Plaintiff at the address indicated on the credit applications.32 In September of 2001, "Defendants retook possession of the business pursuant to a default under the Agreement of Sale and retained as liquidated damages all payments made by Sam Taylor Enterprises, Inc.''33 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29Id. Plaintiff's address was indicated as 308 Cheryl Ave., P.O. Box 1189, Mechanicsburg [Cumberland County], PA 17055. Id. 3°Id. para. 12. 3~ Id. paras. 9-10. 32]d. para. 14. 33 x~d. para. 13. Plaintiff has demanded payment of the $48,791.57 debt? However, the amount remains owing,35 under breach of contract36 and quantum meruit37 theories. Preliminary objections to Plaintiff's first amended complaint were filed by Defendants.38 The preliminary objections request dismissal of the first amended complaint due to (a) legal insufficiency arising out of a lack of averments supporting individual liability of Defendants Garry L. Bentzel and Ruby A. Bentzel for obligations incurred by their corporation,39 (b) legal insufficiency arising out of the absence of specificity in terms of the agency relationship between Defendants and Sam Taylor Enterprises, Inc.,4° (c) legal insufficiency arising out of a lack of averments supporting a benefit to Defendants from goods and services provided while Sam Taylor Enterprises, Inc., was operating the restaurant,41 (d) improper venue,42 (e) failure to state whether Defendant's liability was based upon a writing,43 and (f) failure to attach a copy of the agreement of sale involving Sam Taylor Enterprises, Inc.44 The issues raised in Defendants' preliminary objections were argued on October 23, 2002. 3n Id. para. 16. 35 Id. 36Id. paras. 17-18. 3?Id. paras. 19-20. 38 Defendant's Preliminary Objections to Plaintiff's First Amended Complaint, filed Sept. 20, 2002. 39 Id. paras. 31-37. 4o Id. paras. 26-30, 38-46. 41 Id. paras. 47-50. 42Id. paras. 13-18. 43 Id. paras. 19-23. 44 Id. paras. 24-25. DISCUSSION Statement of Law Legal insufficiency--failure to state claim upon which relief can be granted. Under Pennsylvania Rule of Civil Procedure 1028(a)(4), preliminary objections may include a challenge to the legal sufficiency of a pleading a demurrer. Pa. R.C.P. 1028(a)(4). "The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible, and where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." Scarpitti v. Weborg, 530 Pa. 366, 369, 609 A.2d 147, 148-49 (1992); see Cianfrani v. Commonwealth, State Employees' Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984) (stating that demurrer not to be sustained and complaint dismissed unless law says with certainty no recovery possible). "[A] demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom .... "Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 321-22, 612 A.2d 500, 502 (1992). "An averment of agency is a fact that is admitted for purposes of a demurrer .... "Line Lexington Lumber & Millwork Co., Inc. v. Pennsylvania Publishing Corp., 451 Pa. 154, 163, 301 A.2d 684, 689 (1973). "[A] claim should not be stricken or dismissed for mere lack of specificity." Garrett Electronics Corp. v. Conwell, 46 Cumberland L.J. 256, 260 (1997). Specificity. Under Pennsylvania Rule of Civil Procedure 1028(a)(3), preliminary objections may include a challenge to the specificity of a pleading. The question to be decided when the specificity of a pleading is challenged "is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response ...." 2 Goodrich-Amram 2d §1017(b):21, at 265 (1991). "[D]eficiencies of specificity will generally not result in relief on preliminary objections where the objecting party may be presumed to have at least as much 6 information as does the pleader." Clark v. General Mills, Inc., 48 Cumberland L.J. 124. 127 (1999) (citation omitted). In addition, a preliminary objection based on lack of particularity may, in certain cases, be denied on the ground that discovery is a more appropriate vehicle to resolve the matter. See 2 Goodrich- Amram 2d §1017(b):24, at 268 (1991). "A preliminary objection [challenging the specificity of a complaint] cannot be used to compel the pleading of evidentiary matter." 2 Goodrich-Amram 2d §1019(a):6, at 258 (2001) (citations omitted). Nor, as noted previously, may a challenge to specificity be used to secure dismissal of a complaint.45 Venue. Under Pennsylvania Rule of Civil Procedure 1028(a)(1), a preliminary objection may include a challenge based upon improper venue. Actions against individuals and corporations may be brought in "a county ... in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose," inter alia. Pa. R.C.P. 1006(a), 2179(a)(3), (4). Where venue is proper as to one claim of several claims against a defendant, it is proper as to all claims. Pa. R.C.P. 1006(f). Where venue is proper as to one of several defendants, it is proper as to all defendants. Pa. R.C.P. 1006(c). In the case of a contract requiring a payment of money, "in the absence of agreement to the contrary,.., payment is due at the plaintiff's residence or place of business, and venue is proper there in a breach of contract action alleging failure to make payment." Lucas Enterprises, Inc. v. Paul C. Harman Co., Inc., 273 Pa. Super. 422, 425,417 A.2d 720, 721 (1980). Conformity to rules of court--requirements respecting a writing. Under Pennsylvania Rule of Civil Procedure 1028(a)(2), a preliminary objection may include a challenge to a pleading's conformity to rule of court. Pa. R.C.P. I028(a)(2). 45 See Dorsey v. Pinker, 48 Cumberland L.J. 271 (1999); Borough of New Cumberland v. Gates, 47 Cumberland L.J. 21 (1997); McNally v. Etnoyer, 1 Pa. D. & C.4th 372, 375 (Lancaster 1988); Under Rule 1019(h), "[w]hen any claim.., is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa. R.C.P. 1019(h). Under Rule 1019(i), "[w]hen any claim.., is based upon a writing, the pleader shall attach a copy of the writing." Pa. R.C.P. 1019(i). Where a document is within the possession of a party, the prejudice to that party from its omission from another party's pleading can generally be regarded as de minimis. See, e.g., Foster v. Peat Marwick Main & Co., 587 A.2d 382, 387 (Pa. Commw. Ct. 1991). Application of Law to Facts In the present case, with respect to Defendants' demurrers to various aspects of Plaintiff's first amended complaint, the court is of the view that the circumstances as pled surrounding Plaintiff's provision of goods and services are sufficient to survive a motion for dismissal. Stated otherwise, ambiguities as to the capacities of the Defendants with regard to the transactions alleged, although perhaps resolvable on the basis of evidence in Defendants' favor, do not as pled permit a preliminary termination of the case, or some portion of it, on the ground that the law says with certainty that no recovery is possible. To the extent that the pleading might be more specific, the omitted details (a) are as much within Defendants' knowledge as Plaintiff's, (b) can be supplied in responsive pleadings and through discovery, if necessary, for purposes of future dispositive motions, and (c) do not render the first amended complaint unanswerable. With respect to venue, the record as it exists supports Plaintiff's position that venue is proper in Cumberland County, where payment allegedly was due and, in breach of Defendants' obligation, not made. In this regard, the record does not, through depositions or otherwise, contain a basis upon which a contrary ruling could be justified. Huguet v. Foodsales, Inc., 3 Pa. D. & C.3d 136, 138 (Chester 1977); 2 Goodrich Amram 2d 1017(b): 12, at 256 (1991). With respect to the purported failure to Plaintiff to state whether its claim is based upon a writing, and the failure to attach a copy of the agreement of sale involving Sam Taylor Enterprises, Inc., to the pleading, it may be noted that Plaintiff did attach to the first amended complaint copies of the credit applications/agreements upon which Defendants' liability is directly predicated, and that a copy of the agreement of sale, which is more incidental and evidentiary in nature with respect to Plaintiff's claim, is in the possession of Defendants. Under the circumstances, a dismissal of Plaintiff's complaint, or part of it, as requested on the basis of these issues would not be appropriate. For the foregoing reasons, the following order of court will be entered: ORDER OF COURT AND NOW, this /-ff~ day of November, 2002, upon consideration of Defendants' preliminary objections to Plaintiff's first amended complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied and Defendants are granted twenty days within which to file an answer to the first amended complaint. BY THE COURT, esley Oler, JrfJ. George B. Faller, Jr., Esq. Carl C. Risch, Esq. Ten East High Street Carlisle, PA 17013-3093 Attorneys for Plaintiff Douglas H. Gent, Esq. 1157 Eichelberger Street Hanover, PA 17331 Attorney for Defendants JOHN GROSS & COMPANY, INC. Plaintiff Vo GARRY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 02-103 CIVIL ACTION - LAW NOTICE TO PLEAD To: John Gross & Company, Inc. c/o George B. Faller, Jr. Esquire Martson Deardorff Williams & Otto 10 E. High Street Carlisle, PA 17013 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. Douglas H. Gent, Esquire Sup. Ct. Id.. No. 29964 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, IDA 17331 (717) 632-1784 Attorney t~r Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW DEFENDANTS' ANSWER AND NEW MATTER Now come, this __ day of , 2002, the Defendants, Garry L. Bentzel, Ruby A. Bentzel and Dutch Country Restaurant, Inc., by their attorneys, Menges, Gent & McLaughlin, LLP, and file the within Answer and New Matter to the Plaintiff's First Amended Complaint, to wit: 1. Admitted. 2. Admitted in part and denied in part. It is admitlled that the individual Defendants, Gary L. Bentzel and Ruby A. Bentzel (hereinafter "Bentzel") are adult individuals residing at 1031 Bait Avenue, Hanover, Pennsylvania 17331. It is denied that Bentzel trades and does business under the fictitious name "Dutch Country Restaurant". 3. Admitted. 4. Admitted in part and denied in part. It is admitted that the Plaintiff received a credit application signed by Garry L. Bentzel as President of Dutch Country Restaurant, Inc.. It is denied that the Plaintiff received a credit application from Garry L. Bentzel trading and doing business as Dutch Country Restaurant as a fictitious name co-owned with Ruby A. Bentzel or in any other fashion as individuals. It is denied that Exhibit A is a copy of a credit application received from Bentzel as an individual trading and doing business as Dutch Country Restaurant. 5. Admitted in part and denied in part. It is admitted that beginning approximately on July 10, 1996 and for some time thereafter the Plaintiff provided goods to Dutch Country Restaurant, Inc. (hereinafter referred to as "the Corporation"). It is denied that the Plaintiff provided services to any of the Defendants. It is denied that the Plaintiff provided goods to Bentzel. It is denied that the Plaintiffprovided goods up to April 4, 2000. It is denied that either the Corporation or Bentzel had an outstanding balance of $16,126.51 due and owing to the Plaintiff. 6. Denied. It is denied that on or about April 1, :2000 the Corporation and Bentzel entered into an Agreement of Sale with Sam Taylor Enterprises, Inc. (hereinafter "Sam Taylor") on any of the terms set forth in PlaintiWs paragraph 6 of the First Amended Complaint. 7. Admitted in part and denied in part. It is admitted that the Plaintiff received a credit application signed by Melissa A. Spalla, Vice President of Sam Taylor doing business as Dutch Country Restaurant. Any implication that the time of submission of said credit application establishes that Sam Taylor entered into an Agreement of Sale with the Corporation and Bentzel on or about April 1, 2000, or that any Agreement of Sale was entered into between Sam Taylor and Bentzel is expressly den'led. 8. Denied. It is denied that Bentzel was the owner of the fictitious name "Dutch Country Restaurant" on April 4, 2000 and continued to be the owners of said fictitious name. 9. Denied. It is denied that the balance owed on the account as of June 26, 2001, was $10,124.03 or that the Corporation or Bentzel owed any funds at such time to the Plaintiff. 10. Denied. After reasonable investigation, the Defendants are without sufficient knowledge to forma belief as to the truth of the averments set forth in Paragraph 10 of the Plaintiff's First Amended Complaint. Strict proof thereof, if relevant, is demanded at trial. By way of further answer, it is den'led that any such provision of goods and services by the Plaintiff at the request of Sam Taylor was on behalf of, at the request o1~, the Defendants. It is denied that the Defendants owe the amounts set forth in Paragraph I0 of the Plaintiff's First Amended Complaint. 11. Denied. It is denied that an Agreement of Sale existed between Bentzel and Sam Taylor. It is den'led that Bentzel had any rights to "inspect, manage and work for the business, and preserved the right to retake possession of the business ...". It is denied that the Defendants, in any capacity, remain as owners of the Dutch Country Restaurant and retained rights to inspect, manage and work for the business and preserved the right to retake possession of the business upon default by Sam Taylor. Said Agreement of Sale, a copy of which is attached hereto as Exhibit "A", speaks for itself. 12. Denied. It is denied that Sam Taylor acted in agency capacities for the Corporation and/or Bentzel. It is further denied that the Defendants were "the true owners of the business and fictitious name, in contracting for goods and services for the Dutch Country Restaurant from Plaintiff'. It is denied that the Plaintiff provided any services to the Defendants. 13. Admitted in part and denied in part. It is admitted that Sam Taylor defaulted under the terms of the Agreement of Sale. It is admitted that on or about September 2001 the Corporation exercised its rights and remedies under the Agreement of Sale to retake possession of the assets which had been sold to Sam Taylor pursuant to the Agreement of Sale. It is denied that Bentzel retook possession of anything in that Bentzel was not a party to the Agreement of Sale. It is denied that Bentzel retained anything as liquidated damages since Bentzel was not a party to the Agreement of Sale. 14. Admitted in part and denied in part. It is achnitted that the credit applications attached to the Plaintiff's First Amended Complaint set forth a business address for the Plaintiff located in Cumberland County, Pennsylvania. After reasonable investigation, the Defendants are without sufficient knowledge or information to fo., a belief ~s to the truth of the averments set forth in Paragraph 14 of the Plaintiff's First Amended Complaint with respect to the receipt of payments. Strict proof thereof, if relevant, is demanded at trial. 15. Denied. It is denied both credit applications indicate that the Plaintiff is entitled to reasonable attorney's fees and costs if the accounts are turned over for collection. Rather, the credit applications only state that the Plaintiff may receive reasonable attomey's fees and court costs "to the extent permitted by law". The law does not permit recovery of attorney's fees and court costs in the type of action bought by the Plaintiff in its First Amended Complaint. 16. Admitted in part and denied in part. It is admitted that the Defendants have not made any payments to the Plaintiff as demanded by the Plaintiff subsequent to December 31, 1999. It is denied that any payments are due by the Defendants to the Plaintiff. COUNT 1 - BREACH OF CONTRACT 17. The Defendants incorporate herein by reference as though set forth in full their answers set forth in Paragraph 1 through 16 above. 18. Paragraph 18 of the Plaintiff's First Amended Complaint sets forth a legal conclusion to which no response is required. By way of furthe:r answer, it is denied that either an express or implied Agreement exists between the Plaintiff and any of the Defendants or that the Defendants have breached any such Agreement if such an Agreement existed. It is further denied that anyone acted as agents for the Defendants in any dealings with the Plaintiff. WHEREFORE, the Defendants respectfully request the Honorable Court to enter judgment against the Plaintiff and in favor of the Defendants plus reasonable attorney's fees and costs. COUNT 2 - QUANTUM MERUIT 19. The Defendants incorporate herein by referenc, e as though set forth in full their answers in Paragraphs 1 through 18 above. 20. Paragraph 20 of the Plaintiff's First Amended Complaint sets forth a legal conclusion to which no response is required. By way of further answer it is denied that the Defendants are liable to the Plaintiff for anything. It is further denied that the Defendants have, in any way, been unjustly enriched in any mount. WHEREFORE, the Defendants respectfully reque~,~t the Honorable Court to enter judgment in their favor and against the Plaintiff plus reasonable attorney's fees and costs. NEW MATTER 21. The Defendants answers set forth above in Paragraphs 1 through 20 are incorporated herein by reference as though set forth in full. 22. The credit application set forth as Exhibit A of Plaintiff's First Amended Complaint is solely an application for credit by the Corporation. 23. At all times relevant hereto, Bentzel operated the business known as the Dutch Country Restaurant as a Corporation and not as a sole proprietorship or a partnership using a fictitious trade name. 24. At no time did Bentzel enter into an Agreement with the Plaintiff for the provision of goods and services. 25. At all times relevant hereto, the Plaintiff dealt solely with the Corporation through Bentzel in his capacity as President of the Corporation. 26. On January 1, 2000, the Corporation entered in~Io an Agreement of Sale with Sam Taylor and Samuel V. Spalla and Melissa A. Spalla pursuant to which the Corporation sold the entire business known as the Dutch Country Restaurant to Sam Taylor and Spalla. A copy of said Agreement of Sale is attached hereto as Exhibit A and incorporated herein by reference as though set forth in full. 27. Bentzel is not a party to said Agreement of Sale. 28. Pursuant to said Agreement of Sale the Corporation sold all of its intangible assets such as goodwill and the trade name "Dutch Country Restaurant". 29. Said Agreement of Sale constitutes an installment Agreement of Sale under which Sam Taylor and Spalla were required to make regular payments, with interest to the Corporation. 30. Pursuant to said Agreement of Sale, Sam Taylor and Spalla agreed to assume the liabilities of the Corporation known as "trade payables". Such trade payables included any of the amounts due the Plaintiff. 31. Pursuant to Paragraphs 8 and 9, the Corporation was given the right to repossess the assets of the business if Sam Taylor and Spalla should default on making the payments required under the Agreement for the purchase of said business. Further, Sam Taylor and Spalla agreed to provide operating statements to the Corporation's accountant. 32. Paragraph 13 of the Agreement of Sale specifically transfers the business name "Dutch Country Restaurant" from the Corporation to Sam Taylor and Spalla, and obligates the Corporation to sign any and all documents necessary to transfer said name. 33. In order to protect its interests under the Agreement of Sale, Sam Taylor and Spalla gave the Corporation the right to enter upon the business premises and observe the business operations for a period not to exceed two hours once a week. 34. There are no provisions in the Agreement of Sale under which the Corporation retained any rights to manage or work for the business. 35. The Agreement of Sale is devoid of any provision designating Sam Taylor or Spalla as agents for the Corporation or Bentzel in dealing wit]h any creditors or any other party, including, but not limited to, the Plaintiff with respect to the business. 36. By its terms, the Agreement of Sale became effective January 1, 2000, at which time Sam Taylor and Spalla commenced operating the business. 37. On one or more occasions prior to January 1, 2000, Bentzel acting solely in his capacity as President of the Corporation, contacted the Plaintiff and advised the Plaintiff that the business had been sold and that the purchasers were Sam Taylor and Spalla. 38. At no time prior to January 1, 2000 or thereafter, have the Defendants orally or in writing communicated to the Plaintiff that Sam Taylor or Spalla were designated as agents for the Defendants. 39. The Agreement of Sale, absent an express provision therein, of which there is no any such provision, does not make Sam Taylor or Spalla, expressly or implicitly, agents of the Defendants. 40. At all times relevant hereto, Sam Taylor and Spalla never acted as agents for the Defendants in any dealings with the Plaintiff. 41. As of January 1, 2000, the only amount outstanding that was due and payable by the Corporation to the Plaintiff were amounts for goods provided within 30 days prior to January 1, 2000. As of said date, Bentzel did not owe any monies in any amount to the Plaintiff. 42. The Defendants believe, and therefore aver, that Sam Taylor and Spalla made numerous payments on the account with the Plaintiff between January 1, 2000 and June 30, 2000, which the Plaintiff applied to the oldest outstanding cl~targes such that any amounts that may have been due from the Corporation to the Plaintiff as of January 1, 2000, were paid in full, including any interest, by June 30, 2000. 43. At all times relevant hereto, Bentzel is the sole shareholder, director and officers of the Corporation. 44. The Plaintiff has failed to state a cause of action against Bentzel as individuals. 45. The Plaintiff has failed to state a cause of action against the Corporation and/or Bentzel based upon an alleged agency relationship between Sam Taylor and/or the Spalla's and the Defendants. 46. Bentzel has never received any payments of money from Sam Taylor and/or the Spalla's arising out of the Agreement of Sale. 47. The Corporation received some but not all of the monthly payments required under the Agreement of Sale and has not received the payment of any others monies from Sam Taylor and/or the Spalla's. 48. Never the Corporation nor Bentzel have been rmjustly enriched in that they have never received any monies from Sam Taylor and/or the Spalla"s as a result of Sam Taylor and/or the Spalla's failing to make payments on their account with the, Plaintiff. 49. The Plaintiff has failed to state a cause of action for recovery under the equitable doctrine of Quantum Meruit. WHEREFORE, the Defendants respectfully request the Honorable Court to enter judgment in their favor and against the Plaintiff including reasonable attorney's fees and costs. Respectfully submitted, MENG ,. ENT & McLAUGHLIN, LLP Sup. Ct..D. No. 29964 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanow~-r, PA 17331 (717) 6;32-1784 Attorney for Defendants VERIFICATION I, Garry L. Bentzel and Ruby A. Bentzel, Defendants, l~ereby verify that the statements made in this Answer to the Plaintiff's First Amended Complaint are true and correct to the best of our knowledge and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Garry L. ~/ntze~, Defendant Ruby A. ~fi't~el, befendant 10 VERIFICATION I, Garry L. Bentzel, President of Dutch Country Restaurant, Inc., Defendant, hereby verify that the statements made in this Answer to the Plaintiff's First Amended Complaint are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. arry . e_nt.t.t~, resident of Dut~lfCOuntry Restaurant, h~. Defendant 11 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned, being duly sworn, does hereby state that a tree and correct copy of Defendants' Answer to Plaintiff's First and Amended Complaint was served upon the following at the address indicated below, via regular, first-class, postage pre-paid mail, on December 'q-., 2002. George B. Faller, Jr., Esquire 10 E. High Street Carlisle, PA 17013-3093 // . ~_~_~D_~gla~ I-[~Gent, EYqquiie - ' Menges, Gent and McLaughlin, LLP Sup. Ct. I.D. #29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-11784 Attorney k~r Defendants AGREEMENT OF SALF~ AGREEMENT made this ~ day of ~,O~v~30~V~ , 2000 by , and between DUTCH COUNTRY RESTAURANT, INC., a Pennsylvania corporation, hereinafter referred to as "Seller,,, and SAM TAYLOR ENTERPRISES, INC., a Pennsylvania Corporation, and SAMUEL V. SPALLA and MELISSA A. SPALLA, hereinafter referred to as "Buyer . . WITNESSETH: WHEREAS, Seller is presently the owner of a restaurant which conducts its business at 946 Baltimore Street, Hanover, Pennsylvania, under the trade name of the Dutclh Country Restaurant; and WHEREAS, Seller desires to sell and Buyer desires to buy all of the assets of said business; and WHEREAS, the parties hereto desire to set forth herein their respective undertakings relative to the sale and purchase of said business. NOW THEREFORE, in consideration of the premises and intending to be legally bound hereby, the parties agree as follows: 1. Seller shall sell and Buyer shall purchase Seller,s business owned and operated at 946 Baltimore Street, Hanover, Pennsylvania, under the name of Dutch Country Restaurant, Inc., including equipment, inventory, and good will, as of the date of transfer and all other assets of Seller,s business, tangible and intangible, all of which are more fully described and enumeraUed in the a~tached ~ ~ ~-~ . ~c~_e~e "A" which zs made a part ~ ~= ~ ~e-~o_. EXRIBIT A 2. Buyer shall pay to Seller as the purchase price for the foregoing the sum of Two Hundred Thousand ($200,000.00) Dollars payable as follows: (a) The payment of the Two Hundred Thousand ($200,000.00) Dollars to be amortized over a five (S) year term, together with interest at the annual rate of 8.S% to be paid in monthly installments in the amount of $4,103.32. Payments shall be made once a month beginning 30 days from this date until the principal and interest are paid in full'. There shall be no penalty for prepayment of the loan. Buyer has submitted three monthly installment payments, each in the amount of $4,103.32, as of this date. 3. The parties agree that excluded from the assets to be sold hereunder as part of the business are any tools and equipment which belong to Garry Bentzel personally and those antiques and other personal items located within the restaurant that are owned personally by Garry Bentzel which the parties have heretofore agreed upon and all craft items which are owned by Wendy Bloom. 4. Between the date of execution of this agreement and settlement date, Buyer shall operate as an on going business in the same manner as Seller currently operates the restaurant as of the date of this agreement. The parties agree that the transfer of the operation of the business shall be effective as of midnight of this date and that Buyer shall be responsible for all costs associated with the running of ~he business as of this date. The parties acknowledge that Buyer shall be responsible for all accounts payable, liabilities and debts of the Seller when Buyer takes over the business. S. Seller agrees to give unto the Buyer herein a Bill of Sale for the assets to be transferred herein upon the payment of the purchase price in full as set forth above. The parties agree that the purchase price shall be paid in full. on or before five (5) years from the date hereof. 6. Seller warrants that it is the owner of the assets to be transferred herein. Seller also warrants that the same, as of the date of closing, shall be subject to certain liabilities and encumbrances all of which are set forth in more detail in Schedule B, attached hereto and made a part hereof. Seller warrants that it is the owner of the equipment and all other assets of the restaurant business which are the subject of this agreement and the same as of the date of closing will be subject to the liabilities set forth in Schedule B. ?. Buyer agrees that he will attempt to provide health insurance benefits comparable to those which currently exist in Seller,s business for both Garry Bentzel and Ruby Bentzel by Buyers until such time as Ruby Bentzel reaches age sixty-five (65) . The parties specifically agree that all possible avenues will be explored so as to implement an insurance plan that is most effective for all parties involved. 8. Should Buyers fail to pay the payments set forth above they-shall be in default of this obligation and[ Seller shall, after ten (!0) days written notice of such default be entitled to repossess said assets and Buyer shall forfeit any interes~ in said assets and shall forfeit as liquidated damages any and all payments made to Seller by virtue of this contract up to the time of such default. 9. The parties agree that Buyer shall be in default of this agreement and shall forfeit all rights hereunder unto the Seller if at any time prior to the payment of the purchase price in full the cumulative operating losses of the restaurant business exceed Fifty Thousand ($S0,000.00) Dollars above the current operating losses as determined by Seller,s accountant, Rager, Lehman & Houck, PC. Any calculation involving cumulative operating losses as they pertain to this section shall not include any outstanding accounts payable that exist as of the date of this agreement. 10. Buyer agrees to submit to Seller or Seller,s designated agent monthly balance sheets and income statements and a semiannual accountant,s review report. 11. Until the purchase price is paid in full, the Seller or its designated agent shall retain the right to enter upon the business and observe the business operations on a weekly basis for a time period of not more that two (2) hours in length. Seller or its designated agent's presence will be solely for observational purposes and Seller and/or its agent will not directly discuss business issues with employees or direct any employees without the previous consent of Buyers. 12. The parties agree that Gary and Ruby Bentzel shall co~{nue to work for the Buyers on an as needed basis and such work schedule shall include one weekend per month at hours to be agreed upon by the parties and az such compensation as the parties can agree as requested by Buyer. 13. The parties acknowledge that the business name shall be transferred herein for Buyer,s usage and Seller agrees to sign any and all documents necessary to transfer said name to Buyer at closing so that Buyer may continue to use the business name. 14. Default: (a) Definition - Any of the following occurrences constitutes a default under this Agreement: (1) If the Buyer has failed to make payments under Paragraph 2 above or to make any oti~er payments provided for in this Agreement. Buyer waives all rights to any notice of termination for payment due or for failure to make any payments due under this Agreement. (2) If the Buyer should fail to perform any of the terms or conditions of this Agreement other than those pertaining to the payment of consideration as set forth in Paragraph 2 hereof. (3) If any person shall levi/ upon, take or attempt to take the personal property or any part thereof to be sold hereunder or upon the Buyer's filing a voluntary bankruptcy action, or a creditor of the Buyer placing the dire in bankruptcy involuntarily. (4) If the Buyer shall desert, vacate or abandon the business or if the business operates and shall not be conducted for a period of five (5) consecutive days or if the Buyer shall give notice of its intent to desert, vacate or abandon the business or close the business for a period of five (S) consecutive days. (S) If this Agreement shall, by operation of law~ pass to any person or persons or entity other than the Buyer herein. (b) Rights of the non-defaulting party - Upon the occurrence of a default, the non-defaulting party may exercise any of the following rights and remedies in addition to any other rights and remedies which may be provided in law or in equity: (1) The non-defaulting party may terminate the Agreement and seek damages as the result of such termination including costs of reselling the assets. (2) The non-defaulting party may file an action at law or in equity to enforce its right under the Agreement. (3) The non-defaulting party may recover all attorneys fees, court costs and other reasonable costs incurred in prosecuting or defending any action to enforce its rights under the term of this Agreement or to obtain damages as a result of the default, (c) Rights of Seller upon Buyer's default In the event the Buyer defaults under the terms of this Agreement, --.the Seller shall have the following rights in addiZion to those rights and remedies provided in Paragraph (b) above and in addition to the rights and remedies at law or in equity: (1) The Seller may immediately, or at any time thereafter, reassume possession of the property to be sold hereunder without being liable for any damages therefore. (2/ The Seller may resell the whole or any part of the personal property to be sold hereunder for a period equal to or greater or less than the remainder of the term of this Agreement at such consideration and upon. such terms and conditions as the Seller shall deem reasonable, to any person whom it may deem suitable and satisfactory for the use and purpose which it may deem appropriate. 15. ~onfession of Judqment: If Buyer shall at any time be in default in the payment of the purchase price as set forth in Paragraph 2 above or in the performance of any of the covenants, terms, conditions or provisions of this Agreement and the entire balance for the entire term shall fall due and be collectable at once, Buyer hereby authorizes any attorney of any court of record as often as default be made in the payment of said consideration to appear for the Buyer and confess judgment or judgments against Buyer for the amount then due and any and all charges or other payments then due and collectable with the right to issue execution with attorneys commission of fifteen (1S%) percent for collection, plus costs of suit, without stay of execution, waiving inquisition and exemption. On the failure of the Seller to pay the payments as due or to keep all the covenants of this Agreement, then the Buyer hereby authorizes and empowers any attorney of any court of record to appear in said court and confess a judgment in an amicable action of ejectment for the premises and authorize the immediate issuing of a writ of execution for possession of the property to be sold hereunder and for all payments due and costs, without asking leave of court, to be released only upon the payment of all payments due, costs of suit and fifteen (15%) percent attorneys commission. 16. Ail covenants, warrants and representations herein shall survive this agreement and the closing date. 17. This agreement shall be binding upon the heirs, administrators, executors and assigns of the parties. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year aforesaid. WITNESS: ATTEST: SAM ~YL~OR ENTERPRISES, INC. EL V i S P~L~ Schedule "A" Assetsherein: of Dutch Country Restaurant, Inc. to ]De transferred Schedule B Debts and obligations of Dutch Country Resta~rant, Inc.: JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/cl/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED REPLY TO NEW MATTER AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby replies as follows: 21. The Plaintiff incorporates herein by reference as though set forth in full its averments in Paragraphs 1 through 20 of its First Amended Complaint. 22. Denied. The credit application set forth as Exhibit A to Plaintiff's First Amended Complaint is an agreement between Plaintiff and the Dutch Country Restaurant. By way of further answer, all of the Defendants were transacting business under 'the fictitious name "Dutch Country Restaurant" and all parties entered into the Agreement with plaintiff. Moreover, Plaintiffis entitled to pierce the corporate veil of the corporate entity, Dutch Country Restaurant, Inc., which is a mere facade for the operations of the shareholders. 23. Denied. Defendants Garry and Ruby Bentzel transacted business with Plaintiff under the name "Dutch Country Restaurant" as individuals and as a corporation, thus entitling Plaintiffto pierce the corporate veil. 24. Denied. Defendants Bentzel entered into a wril:ten agreement with Plaintiff for the provision of goods and services as individuals t/d/b/a Dutch Country Restaurant and on behalf of a corporate entity called "Dutch Country Restaurant, Inc." 25. Denied. Plaintiffdealt with the Dutch Country Restaurant, a fictitious name used by Defendants Garry and Ruby Bentzel as individuals, as well as with a corporate entity called "Dutch Country Restaurant, Inc." Moreover, Plaintiff is entitled to pierce the corporate veil of the Dutch Country Restaurant, Inc. 26. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. 27. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms ofthe Agreement are denied. Byway of further answer, although Garry Bentzel purported to sign the Agreement of Sale on behalf of Dutch Country Restaurant, Inc., he reserved rights for himself personally, and[ his spouse, in the Agreement, thus indicating that this was actually an Agreement between Dutch Country Restaurant, Inc., Garry and Ruby Bentzel as individuals, and the prospective buyers. It is also indicia that the Dutch Country Restaurant, Inc. is a mere facade used at the convenience of Defendants Bentzel. 28. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. By way of further answer, the registered owners of the fictitious name "Dutch Country Restaurant" with the Pennsylvania Department of State are Garry and Ruby Bentzel. Dutch Country Restaurant, Inc. lacked all legal authority to sell the fictitious name to the prospective buyers and, even if it had the 2 authority, no party has filed a Consent to Appropriation of Name or Consent to Use of Similar Name with the Pennsylvania Department of State as required by 19 Pa. Code § 17.2-17.3. Moreover, Plaintiff specifically denies that any sale of any assets ever took place under the purported Agreement of Sale. 29. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. 30. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. By way of further answer, an agreement between Defendants and a third party regarding the payment of debts to Plaintiff does not in any way discharge Defendants' obligations to Plaintiff This is a dispute between Defendants and the prospective buyers, the Spallas. 31. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. 32. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. By way of further answer, not only did Dutch Country Restaurant, Inc. lack the legal authority to transfer ownership of the name, but Plaintiffcannot be bound by this attempted transfer without actual or constructive notice. Moreover, Plaintiff specifically denies that any sale of zaay assets ever took place under the purported Agreement of Sale. 33. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. 3 34. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperly characterize the terms of the Agreement are denied. By way of further answer, the purported Agreement of Sale contains provisions under which Defendants Garry and Ruby Bentzel reserved rights to work for the business. 35. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperiy characterize the terms of the Agreement are denied. Byway of further answer, Plaintiff believes, and therefore avers, that Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla acted as agents of Defendants, the owners of the Dutch Country Restaurant, in their dealings with Plaintiff. 36. Denied. The Agreement of Sale attached to Defendants' Answer speaks for itself and all attempts to improperiy characterize the te,ms of the Agreement are denied. 37. Admitted in part, denied in part. It is admitted that Plaintiffs were aware that Defendants were attempting to transition their business to future owners. It is denied that Defendant did this "solely as President of Dutch Country Restaurant, Inc."' or that Plaintiff in any way agreed to release Defendants from current or future obligations of the Dutch Country Restaurant or Defendants' agents. 38. Admitted in part, denied in part. It is admitted that Defendants did not specifically identify Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla as "agents" for the Defendants. However, it is denied that an agency relationship between the parties did not exist as a matter of law and that Defendants are not obligated to pay the debts incurred by the Dutch Country Restaurant. By way of further answer, Defendants are obligated to pay all debts incurred by the Dutch CountW Restaurant. 39. Denied. By way of further answer, Plaintiffbelieves, and therefore avers, that Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla acted as agems of Defendants, the owners of the Dutch Country Restaurant, in their dealings with Plaintiff. 40. Denied. By way of further answer, Plalntiffbelieves, and therefore avers, that Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla acted as agents of Defendants, the owners of the Dutch Country Restaurant, in their dealings with Plaintiff 41. Denied. As of the date Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla began purchasing goods and services from Plalntiffas agems of Defendants under a separate account agreement, Defendants had incurred $16,126.51 in liabilities. By way of further answer, this obligation was reduced to $10,124.03 by June 26, 2001. 42. Admitted in part, denied in part. It is admitted that payments were made on Defendants' account between January and June 2000 and that P][aintiffapplied these payments to the oldest outstanding charges. It is denied that these payments were sufficient to satisfy all the debts incurred by Defendants, not including those debts incurred on behalf of Defendants by Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla after April 4, 2000. 43. Denied. After reasonable investigation, Plaintiff is unable to admit or deny the allegations in Paragraph 43 and, therefore, those allegations are denied. 44. Denied. Paragraph 44 is a conclusion of law to which no response is required. 45. Denied. Paragraph 45 is a conclusion of law to which no response is required. 46. Denied. After reasonable investigation, Plaintiff is unable to admit or deny the allegations in Paragraph 46 and, therefore, those allegations are denied. By way of further answer, Plaintiffbelieves, and therefore avers, that Defendants Bentzel personally enjoyed the benefits of any payments received from the prospective buyers. 47. Denied. After reasonable investigation, Plaintiff is unable to admit or deny the allegations in Paragraph 47 and, therefore, those allegations are denied. By way of further answer, Plaintiffbelieves, and therefore avers, that Defendants Bentzel personally enjoyed the benefits of any payments received from the prospective buyers. 48. Denied. Any money received by Defendants from Sam Taylor Enterprises, Inc. and/or Sam and Melissa Spalla was unjustly received in view of the debts owed to Plaintiff and Defendants' continuous ownership of the Dutch Country Restaurant. 49. Denied. Paragraph 49 is a conclusion of law to which no response is required. WHEREFORE, Plaintiff, John Gross & Company, Inc., demands judgment against the Defendants in the amount of $48,791.57, plus attorneys fees and costs. George B. Failer, Jr., Esquire ID Number 4981:3 Carl C. Risch, Esquire ID Number 75901 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff John Gross & Company, Inc. Date: December 12, 2002 VERIFICATION The foregoing Reply 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. John Gro~ Company, Inc. JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/dgo/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED CERTIFICATE OF SERVICE I, Carl C Risch, hereby certify that a copy of the foregoing Reply to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 MAR~~RFF WILLIAMS & OTTO By ~ X,.2~x ( '..zSc/ Carl C. Risch Ten East High Street Carlisle, PA 1'7013 (717) 243-334.1 Dated: December 12, 2002 IN THE COU JOHN GROSS & CO] GARRY L. BENTZ] BENTZEL and DUT' COUNTRY RESTAI Defendants, Country Restaura~ for the following rea~ 1. Plain! records related to ac A copy of Plaintiffh reference as "Exhi~ Dutch Country Resl 2. Plai~ provided to Defend ~,T OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA /IPANY, INC., : laintiff, ' it~nd RUBY A ' RANT, INC., : )efendants. : NO.:: 02-103 CIVIL ACTION - LAW )BJECTIONS TO SUBPOENA PURSUANT TQ -- RULE 4009.21 ,arry L. Bentzel and Ruby A. Bentzel as adult individuals and Dutch Inc., object to the proposed subpoena that is attacbed to these objections )ns: ff's subpoena orders M&T Bank, to sapply "Any and all documents or ount number 657352-2112, including but not limited to cancelled checks." qotice of Intent to Serve a Subpoena is attached hereto and incorporated b A." The above-mentioned account number is the operating account lrant, Inc. tiff's Complaint is for alleged unpaid debt related to goods and service mrs by Plaintiff between July 10, 1996 ~ad June 26, 2001. 3. Plaintiff' period of time, and fa calculated to lead to the 4. Plaintiff documents related to t~ to whom the transacti, would lead to informal and requires the prod immediate action at ha subpoena is inappropriately broad in that it provides for no specific exceeds any time period that would lead to information reasonably :liscovery of admissible evidence. subpoena is inappropriately broad in that it requires any and all specified bank account, irrespective of the nature of the transaction and was with. Plaintiff's subpoena request far exceeds any request that [on reasonably calculated to lead to the discovery of admissible evidence, action of information that is confidential, beating no relevance to the id. Respectfully submitted, MENGES, GENT & McLAUGHLIN, LLP (_~D~tlg~,Ls I/1t. Gen~, Esquire Sup. Ct. I.D. No. 29964 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hmover, PA 17331 (717) 632-1784 A~omey for Defend~ts 2 JOHN GROSS & COM GARRY BENTZEL a] COUNTRY RESTAUtl N( Defendant inte~ have twenty (20) days: undersigned an objectio Date: October 14, 200 PANY, INC. : [a'mtiff : : [ DUTCH : ANT, INC., : efendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-103 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED 7ICE OF INTENT TO SERVE A SUBPOENA TO 'RODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Is to serve a subpoena identical to the one that is attached to this notice. You i'om the date listed below in which to fl[le of record and serve upon the a to the subpoena. If no objection is made, the subpoena may be served. MAR~O~/APd~ORFF WILLIAMS Carl C. Risch, Esquire I.D. Number 75901 Ten East High Street Carlisle, PA 170[3-3093 (717) 243-3341 & OTTO Attorneys for Plaintiff JOHN GROSS & COMPANY, iN{ GARRY BENTZEL and DUTCH RESTAURANT, INC. ~OFPE{~%ISYLV2%N:rA : File No. 02-103 ~UNTRY : FOR DISOOVERy PURSUANT TO RULE 4009.?? TO: M&T Bank, successo in interest to Allfirst Bank dayl a (Name.of Person or Enttt¥) within twenty (20) ft~ service of this sublx.wla, you are ordered by the ~ ~,~uce the following ~c~ne~ts or things: Any and ail documents or records related to account number 657352-2112, including but not limited to cancelled checks. at MARTSON DEARDORFF WII You may del iver or this subpoena, together request at the address 1 cost of preparing the copi, If you fail to prod~ (20) days after its s~ cudgelling you to c~,wly w' HIS SUBPOENA WAS ISSUED A3 NAMe: Carl C. Risch, EsquJ IAMS & OTTO, Ten East High Street, Carlisle, PA ~ (Address) Lil legible copies of the doc~nts or produce things requ~ with the certificate of ca~liance, to the Party ~im isted above. You have the right, to sc:k in advance the rea ~ or producing the things sought. the doccments or things required by this subFx:ena within vice, the party serv{rlg this subpo~-~ may seek a tour reTH~ RE(2UEST OF THE FOU_OHING PERSON: ~]O~Ess:MARTSON DEARDORFF Ten East High Stre( TELEPHONE: (717) 243-3341 S%~OOU~T ID # 75901 A~l~NEy FO~: Plaintiff OATE: S~I of th~ ILLIAMS & OTTO t, Carlisle, PA 3 17013 BY THE Pi~°~'~notary/Cler~,, Civt 1 Division ~t to ~%ed by ~g this ~nable twenty order (Elf. 797) I, Nichole L. M certify that a copy of thc Things Pursuant to Pa. i at Carlisle, PA, first cla Dated: October 14, 200~ CERTIFICATE OF SERVICE ters, an authorized agent of Martson Deardorff Williams & Otto, hereby foregoing Notice of Intent to Serve a Subpoena to Produce Documents and LC.P. 4009.21 was served this date by d,~ositing same in the Post Office ;s mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES, GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 17331 MARTSON DEtLRDORFF WILLIAMS & OTTO Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 IN THE CO1 JOHN GROSS & CC Vo GARRY BENTZEL BENTZEL and DWI COUNTRY RESTA[ The undersign Defendants' Objection the address indicated 2003. JRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MPANY, INC., : .. qaintiff, : ,. .. nd RUBY A. : 2H : RANT, INC., : )efendants. : NO.,: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE d, being duly sworn, does hereby state that a true and correct copy of ; to Plaintiff's Subpoena to M&T Bank was served upon the following at >elow, via regular, first-class, postage pre-paid mail, on October o2.~., Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013-3093 t._Doa~fa~ ~G-e~t, ~sq~ui~e ~r Menges, Gent and McLaughlin, LLP Sup. Ct. I.D. #29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attomey for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW Defendants, G: Country Restaurant for the following teas. AMENDED OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 trry L. Bentzel and Ruby A. Bentzel as adult individuals and Dutch [nc., object to the proposed subpoena that is attached to these objections 1. Plaintiff's subpoena orders M&T Bank, to supply "Any and all documents or records related to acco mt number 657352-2112, including but not limited to cancelled checks." A copy of Pl~ntiff's NIti:e of Intent to Serve a Subpoena is attached hereto and incorporated by reference as Exhibit A. The above-mentioned account number is the operating account for Dutch Country Restaur 2. Plaintiff provided to Defendan~ mt, Inc. Complaint is for alleged unpaid debt related to goods and services , Plaintiffbetween July 10, 1996 and June 26, 2001. 3. Plaintiff's subpoena is inappropriately broad in that it provides for no specific period of time, and far exceeds any time period that would lead to information reasonably calculated to lead to the discovery of admissible evidence. 4. Plaintiff's subpoena is inappropriately broad in that it requires any and all documents related to tht specified bank account, irrespective of the nature of the transaction and to whom the transaction was with. Plaintiff's subpoena request far exceeds any request that would lead to informati ~n reasonably calculated to lead to the d~scovery of admissible evidence, and requires the prodt ction of information that is confidential, bearing no relevance to the immediate action at hat d. 5. Plaintiff s subpoena requests information that bears no relevance to the immediate action at hand, and is r at reasonably calculated to lead to the d~scovery of admissible evidence, in that the bank accoun' listed is the personal bank account for Garry and Ruby Bentzel. Plaintiff has failed to plead an: facts in its Complaint that would permit Plaintiff to obtain discovery information fi.om Defe~ tants' personal bank account. Date: Respectfully submitted, MENGES, GENT & McLAUGHLIN, LLP Douglas H. Gent, Esquire Sup. Ct. I.D. No. 29964 Andrew H. Shaw, Esquire Sup. Ct. I.D. No. 87371 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 (717) 62;2-1784 Attorneys for Defendants IN THE CO1 RT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & CO GARRY BENTZEL ~ BENTZEL and DUTI COUNTRY RESTA[ The undersign Defendants' Amended following at the addr. November ,3,2003. ~IPANY, INC., : ._ laintiff, : : _, ad RUBY A. : H : IANT, INC., : ; ~efendants. : NO.: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE t, being duly sworn, does hereby state that a true and correct copy of Objections to Plaintiff's Subpoena to M&T Bank was served upon the ss indicated below, via regular, first-class, postage pre-paid mail, on Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013-3093 Andrew H. Shaw, Esquire Menges, Gent and McLaughlin, LLP Sup. Ct. I.D,. #87371 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL, t/dgo/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED pLAINTIFF'S RESPONSE TO DEFENDANTS' OBJECTIONS TO SUBPOENA AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to the Defendants' Objections to Plaintiff's proposed subpoena to M&T Bank as follows: 1. The account number appears to be the personal banking account for Defendants Garry L Bentzcl and Rudy A. Bentzel (herein, "Defendants") as evidenced by the Defendants' home address noted on the check. A copy of the check is attached hereto as Exhibit "A." Further, Plaintiff's subpoena ordering M&T Bank to supply any and all documents is necessary to determine why Defendants wrote a personal check to pay for a business expense and to determine whether Defendants were making payments from their personal banking account in order to conduct business. 2. Obtaining the banking account records for thc account number 657352-2112 is necessary to determine whether Defendants were conducting business through this bank account during the period Plaintiff supplied goods and services. 3. Plaintiff believes that the banking account history is relevant to determine the extent of Defendants use of the account for business purposes. 4. Plaintiff believes that such information is necessary to lead to evidence that the account was used for business purposes, is not confidential, and is relevant to establish business activity through the account that was disguised as a personal account. 5. Defendant has stated that this account is both the operating account for Dutch Country Restaurant, Inc. (Objection #1), and the personal bank account for Defendants (Objection #5). This alone should provide evidence that the account is relevant to this matter because the account number was both admitted to be used for business and for personal banking. WHEREFORE, Plaintiff request that this Court schedule a hearing regarding this matter in order to decide this issue. Date: November -/~-., 2003 Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Christopher E. Rice, Esquire PA Attorney I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that a copy of the foregoing document was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire Menges Gent & McLaughlin 1157 Eichelberger Street Hanover, PA 17331 Christopher E. Rice Date: November \ )- , 2003 JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S MOTION FOR A HEARING AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and moves as follows: 1. On or about October 14, 2003, Plaintiff notified Defendants of its intent to serve a subpoena upon M&T Bank pursuant to Pa. R.C.P. 4009.21. 2. On or about October 28, 2003, Defendants filed Objections to Subpoena and amended those objections on or about November 3, 2003. 3. On November 12, 2003, Plaintiff filed its Response to Defendants' Objections. 4. Plaintiff hereby incorporates by reference PlaintifFs Response to Defendants's Objections to Subpoena. WHEREFORE, Plaintiff requests this Honorable Court schedule a heating in order to resolve this dispute. Date: November ~t~ _, 2003 MARTSON, DEARDORFF, WILLIAMS & OTTO By ~~' Carl C. Risch, Esquire PA Attorney I.r). No. 75901 Christopher E. Rice, Esquire PA Attorney I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that a copy of the foregoing document was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire Menges Gent & McLaughlin 1157 Eichelberger Street Hanover, PA 17331 Christophe~E. ~ce ' Date: November, 2003 JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this ,(o L~ day of~~:~l.~' 2003, upon consideration of the foregoing Plaintiff's Motion, it is hereby ordered that ao~U?s/~cheduled for the 'f~ ~ day of , ~ in Courtroom No.C{ , beginning at2.'~ o clock,f.m., of the Cumberland County Courthouse. BY THE COURT, JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. : BENTZEL, t/d/b/a DUTCH COUNTRY : RESTAURANT, and DUTCH COUNTRY : RESTAURANT, INC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIViL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED PETITION FOR COURT APPROVAL TO FILE PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WiLLIAMS & OTTO, and files this Petition for Court Approval, and in support thereof, moves as follows: 1. On or about November 17 and 18, 2003, Plaintiff deposed approximately nine individuals. 2. After attending the depositions and obtaining additional documentation from these individuals, Plaintiff revised its First Amended Complaint. 3 Plaintiffamended the First Amended Complaint in order to pierce the corporate veil. 4. Plaintiffwas unable to state such averments with particularity until after conducting the depositions, which produced significant factual evidence, due to the fact that such evidence had not yet been revealed to Plaintiff through other means of discovery. 5. Defendants failed to provide an Assignment in Plaintiff's Request for Production of Documents, which was inadvertently revealed to Plaintiff by a third party at the depositions held above. 6. Plaintiffnow has sufficient evidence to pierce the corporate veil, as set forth within the attached Second Amended Complaint, and included hereafter: a. by way of the Assignment, assigning all rights to collect under the Agreement of Sale to themselves without consideration and without including the other two shareholders of the corporation; b. commingling corporate and non-corporate funds; assigning the fights to collect from Sam Taylor Enterprises, Inc., to themselves personally; failing to enter into a written lease agreement between themselves and the corporation but still allowing the corporation to lease the premises known as Dutch Country Restaurant; failing to properly maintain adequate capital in the corporation after they reclaimed the business; ignoring rights of the other stockholders; abandoning the proper procedure to dissolve a corporation when unpaid creditors exist; failing to notify creditors that they entered into an Agreement of Sale and that they retook the business from the Spallas; after entering into the Agreement of Sale, assigning to themselves personally all remaining rights to collect payments under the Agreement of Sale without making provisions for creditors to be paid; as the dominate stockholders, siphoning corporate funds to themselves by way of the Assignment; using the payments made under the Agreement of Sale for personal expenses, including, but not limited to, living expenses; after repossessing the business, giving back all assets to the corporation without consideration, and keeping the payments made under the Agreement of Sale, averaging $946.92 per week plus interest and cost that was paid for approximately 20 months without providing for creditors; operating the corporation with personal funds; and using the assets of the corporation as if they were their own personal assets. On or about December 4, 2003, Plaintiff sent a letter to Defendants stating that Plaintiff wished to file an amended complaint due to the recent developments in the case. 8. Plaintiff included with the December 4th letter, a copy of the Second Amended Complaint and a Consent Form. 9. In accordance with Pa.R.C.P. 1033, Plaintiff requested that Defendants sign the Consent Form, giving permission to Plaintiffto file the Second Amended Complaint, or Plaintiff would be forced to seek leave of court. 10. On or about December 12, 2003, Plaintiff again sent a letter to Defendants requesting that Defendants return the signed Consent Form by Friday, December 19, 2003, or Plaintiff would seek leave of court. 11. On or about December 18, 2003, Defendants sent a letter to Plaintiff stating, among other things, that they were opposed to and would not support Plaintiff's request to file an amended complaint. A copy of the letter is attached hereto as Exhibit "B." 12. As of this date, Defendants have refused to sign the Consent Form and permit Plaintiff to file the Second Amended Complaint. 13. Plaintiff's Second Amended Complaint will not prejudice the Defendants. WHEREFORE, Plaintiff requests this Honorable Court GRANT the above Petition for Court Approval to file Plaintiff's Second Amended Complaint. Date: December .~2_.- 2003 MARTSON, DEARDORFF, WiLLIAMS & OTTO Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Christopher E. Rice, Esquire PA Attorney I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, individually and t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 MARTSON DEARDORFF WILLIAMS & OTTO By Carl C. Risch, Esquire ID Number 75901 George B. Failer, Jr., Esquire ID Number 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff December ,2003 JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, individually and t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED SECOND AMENDED COMPLAINT AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff, John Gross & Company, Inc., is a Pennsylvania corporation with a principal place of business at 400 Cheryl Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendants Garry L. Bentzel and Ruby A. Bentzel are adult individuals residing at 1031 Beir Road, Hanover, Pennsylvania 17231 who trade and do business under the fictitious name Dutch Country Restaurant. 3. Defendant Dutch Country Restaurant, Inc., is a business entity located at 946 Baltimore Street, Hanover, Pennsylvania 17331 (herein, the "corporation"). 4. The stockholders of Defendant Dutch Country Restaurant, Inc., consist of Defendant Garry L. Bentzel, owning 96%, and his two daughters, owning 2% each. 5. On July 10, 1996, Plaintiff received a credit application signed by Defendant Garry L. Bentzel, President of Dutch Country Restaurant, Inc., and, simultaneously, from Defendant Garry L. Bentzel t/d/b/a Dutch Country Restaurant, a registered fictitious name co-owned with Ruby A. Bentzel. A copy of the credit application is attached hereto as Exhibit A. 6. From July 10, 1996 up until April 4, 2000, the Plaintiff provided goods and services to the entity known as Dutch Country Restaurant, Inc. As of April of 2000, there was an outstanding balance on Dutch Country Restaurant's account of $16,126.51. 7. Defendant Dutch County Restaurant, Inc., and Sam Taylor Enterprises, Inc., entered into an Agreement of Sale dated January 1, 2000 (herein, the "Agreement of Sale"), whereby Defendants agreed to sell the inventory, equipment, and goodwill of the Dutch Country Restaurant to Sam Taylor Enterprises, Inc., upon payment of $200,000.00 amortized over a 5 year period during which time Sam Taylor Enterprises, Inc., would manage the restaurant. A copy of the Agreement of Sale is attached hereto as Exhibit B. 8. Simultaneous to the corporation entering into the Agreement of Sale, Defendants Garry L. and Ruby A. Bentzel entered into a Lease Agreement for the premises known as Dutch Country Restaurant with Sam Taylor Enterprises, Inc., with an option to purchase. A copy of the Lease Agreement is attached hereto as Exhibit C. 9. On or about January l, 2000, Defendants Gan'y L. and Ruby A. Bentzel entered into an Assignment with Defendant Dutch Country Restaurant, Inc. A copy of the Assignment is attached hereto as Exhibit D. 10. Under the Assignment, Defendant Gary L. Bentzel, as President of Defendant Dutch Country Restaurant, Inc., assigned the restaurant's rights to collect payments under the Agreement of Sale to himself and his wife, Defendant Ruby A. Bentzel, for no consideration and without providing for the other stockholders. 11. Defendant Gan'y L. Bentzel, as President of Dutch Country Restaurant, Inc., avoided existing obligations to pay creditors for past services by assigning all of the corporation's fights to collect payment under the Agreement of Sale to both himself and his wife, Defendant Ruby A. Bentzel. 12. On April 4, 2000, Plaintiff received a credit application signed by Melissa A. Spalla, Vice President of Sam Taylor Enterprises, Inc. d/b/a Dutch Country Restaurant. A copy of the credit application is attached hereto as Exhibit E. 13. On April 4, 2000, Defendants Garry L. and Ruby A. Bentzel were the owners of the fictitious name "Dutch Country Restaurant" and continue to be the owners of this fictitious name. 14. Additional payments were made on Dutch Country Restaurant's account which reduced the balance due to $8,644.80, plus interest and penalties of $1,479.23, for a total of $10,124.03 as of June 26, 2001. 15. From April 5, 2000 until June 26, 2001, Plaintiff provided goods and services to Dutch Country Restaurant at the request of Sam Taylor Enterprises, Inc. 16. As of June 26, 2001, there was an outstanding balance on Dutch Country Restaurant's account of $31,762.38, plus interest and penalties of $6,905.16, for a total of $38,667.54, in addition to the $10,124.03 directly arranged by Defendants Gary L. and Ruby A. Bentzel. 17. Under the Agreement of Sale, Defendants: a. remained the owners of the Dutch Country Restaurant; b. retained rights to inspect, manage, and work for Dutch Country Restaurant; c. preserved the right to retake possession of Dutch Country Restaurant upon default by Sam Taylor Enterprises, Inc; and d. remained in financial control of Dutch Country Restaurant given that a disproportionate amount of the restaurant's revenue was diverted to the Bentzels personally. 18. During its period of involvement, Sam Taylor Enterprises, Inc., and its owners, Sam and Melissa Spalla, acted in agency capacities for Defendants, the true owners of the business and fictitious name, in contracting for goods and services for Dutch Country Restaurant from Plaintiff. 19. On or about September 2001, the Spallas defaulted on their payments and Defendants Garry L. and Ruby A. Bentzel retook possession of the business without filing any foreclosure actions and without giving notice to any creditors. 20. As a result of the default, Defendants Garry L. and Ruby A. Bentzel retained as liquidated damages all payments made under the Agreement of Sale by Sam Taylor Enterprises, Inc., totaling approximately $74,806.68. Moreover, Garry L. and Ruby A. Bentzel retained all payments made under the Lease Agreement totaling approximately $126,661.32. 21. On or about September 19, 2001, Defendants Garry L. and Ruby A. Bentzel paid Plaintiff for goods or services through their personal bank account for an order Sam and Melissa Spalla placed. 22. Defendants Garry L. and Ruby A. Bentzel partook in certain events which provide sufficient evidence for the court to pierce Defendant Dutch Country Restaurant, Inc.'s, corporate veil. 23. Defendant Dutch Country Restaurant, Inc., was the alter ego of Defendants Garry L. and Ruby A. Bentzel because Defendants used the corporation to further their own personal interest. 24. Defendants Garry L. and Ruby A. Bentzel failed to abide by corporate formalities and intermingled their personal interests with the interests of Dutch Country Restaurant by, among other things: a. commingling corporate and non-corporate funds; b. failing to enter into a written lease agreement between themselves and the corporation but still allowing the corporation to lease the premises known as Dutch Country Restaurant; c. failing to properly maintain adequate capital in the corporation after they reclaimed the business; d. ignoring rights of the other stockholders; e. abandoning the proper procedure to dissolve a corporation when unpaid creditors exist; f. failing to notify creditors that they entered into an Agreement of Sale and that they retook the business from the Spallas; g. after entering into the Agreement of Sale, assigning to themselves personally all remaining rights to collect payments under the Agreement of Sale without making provisions for creditors to be paid; h. assigning all rights to collect under the Agreement of Sale to themselves without consideration and without including the other two shareholders of the corporation; i. as the dominate stockholders, siphoning corporate funds to themselves by way of the Assignment; j. using the payments made under the Agreement of Sale for personal expenses, including, but not limited to, living expenses; k. after repossessing the business, giving back all assets to the corporation without consideration, and keeping the payments made under the Agreement of Sale, averaging $946.92 per week plus interest and cost that was paid for approximately 20 months without providing for creditors; and 1. operating the corporation with personal funds. 25. Defendants Garry L. and Ruby A. Bentzel fraudulently and illegally used Defendant Dutch Country Restaurant to further their own personal interests by, among other things, including the actions in paragraph 24: a. assigning the rights to collect from Sam Taylor Enterprises, Inc., to themselves personally; and b. using the assets of the corporation as if they were their own personal assets. 26. Defendants Garry L. and Ruby A. Bentzel maintained control of Defendant Dutch Country Restaurant, Inc., and are liable to Plaintiff both individually and doing business as Defendant Dutch Country Restaurant, Inc. 27. Both credit applications clearly indicate that Plaintiff is located in Cumberland County, Pennsylvania, and all payments made by Defendants on their account were received in Cumberland County, Pennsylvania, under the agreement between the parties. 28. Both credit applications indicate that Plaintiff is entitled to reasonable attorney's fees and costs if the accounts are turned over for collection. 29. Despite repeated demand, no payment has been made by the Defendants for amounts due. COUNT 1 - BREACH OF CONTRACT 30. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 29 as if fully set forth. 31. Defendants breached an expressed or implied agreement, directly or through agents, to pay for the goods and services provided to the Dutch Country Restaurant. WHEREFORE, Plaintiff, John Gross & Company, Inc., demands judgment against the Defendants in the amount of $48,791.57, plus attorneys fees, interests, and costs. COUNT II - QUANTUM MERUIT 32. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 31 as if fully set forth. 33. The Defendants are liable to the Plaintiff and/or have been unjustly enriched in the mount of $48,791.57. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $48,791.57, plus pre-judgment and post-judgment interest, costs, and attorneys fees. MARTSON DEARDORFF WILLIAMS & OTTO / By Carl C. Risch, Esquire ID Number 75901 George B. Faller, Jr., Esquire ID Number 49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Date: December ,2003 JOHN GROSS & CO., INC. 308 Cheryl Ave., P.O. Box 1189 Mechanicsburg, PA 17055 (717) 766-2508 800-368-6800 CREDIT APPLICATION AND AGREEMENT rRADE NAME (DBA) D~"~4'~ ~ ~ ?Ak"/ /~3C'5'/~'u-''''-'~' '/-'' _EGAL COMPANY NAME ~ u/~' ,~ ~' O ~J~ "~/~ /~F'-~ 7z.=~' '//-,~'~ -/~ ~ ~' / =lease check one of the following: [~orporation registered to do business in PA I'-I Sole proprietorship [] Partnership _ENGTH OF TIME IN BUSINESS / ~/~, p~,~'5 ~ -~' C o/,-',,~/,7~'~.! )o you: [~0~wn [] Rent [] Currently purchasing property ~,PPROXIMATE CREDIT REQUIREMENTS $ Per "~" =ENNSYLVANIA SALES TAX EXEMPTION NUMBER: If you hold a valid Pennsylvania Blanket Sales Tax Exemption Certificate, )lease attach executed form REV 1220: Exemption Certificate. 3US1NESS ADDRESS: SHIPPING ~,ddress ~z~'~ Address PO Box # ;ity, State ,/.//~.~ g,'/~.~", /42~, City, State Bus. 3p / 7.~ ~ / ' P~hone ~_(~/7) ~ ,"~ 2- -/g'/./ Zip .-AX ~_( ) FAX #_(__ /lerchandise receiving hours · BILLING Bus. Phone #_( ) ipecial delivery instructions: lAMES, ADDRESSES, PHONE NUMBERS OF ALL OWNERS/PARTNERS: / Iome Address /~ ,, / ~ tOW long have you resided at this location? lame Social Securi~/# 1~7-~o- Home Phone #_(,~) ,~) Social Security # ,ome Address ow long have you resided at this location? ame ome Address Home Phone #_( Social Security ff_ ow long have you resided ~tt this location? -- OVER -- Home Phone #_( ) REFERENCES: Name, Address and Telephone #: 4 Account Account 02/'70 1 In consideration for the extension of credit and intending to be legally bound hereby, t~e undersigned Buyer hereby agrees that the following terms will govern any charge account established by John Gross & Co. (Seller) for Buyer's benefit. 1. Payment. Buyer hereby agrees to pay the Time Sale Price of purchases charged to Buyer's account. The Time Sale Price shall consist of the cash sale price, including applicable sales taxes and delivery charges, if any, plus service charges and any finance charge which may accrue pursuant to paragraph two (2) hereunder. 2. Past Due Accounts. Buyer hereby agrees that interest charges of 1½ % per month or 18% per annum will be assessed on any account balance which is not satisfied within 30 days of the Billing Date. 3. Seller's remedies. In the case of Buyer's Default, Buyer's entire account balance shall become due and payable. Seller's waiver of any Default sha not operate as a waiver of any other Defautt. If Buyer's account is referred for collection to any attorney, Buyer will pay, to the extent permitted by law, reasonable attorney's fees and court costs incurred. 4. Seller's Discretion. The extension of temporary credit pursuant to this Agreement is within Seller's sole discretion and Seller may terminate this Agreement at any time and for any reason. 5. Credit Check. Buyer hereby authorizes the firms and banking institutions listed above to furnish any information request- ed by Seller to process this application; and Buyer agrees that neither those firms nor their employees shall be liable for any claim of damages as a result of furnishing the requested information. Business name: Authorized Representative of Applicant: OFFICE USE ONLY: Sales Person Level Type Account Terms Limit Special Instructions Approved By AGREEMENT OF SALE AGREEMENT made this ~{ day of and between DUTCH cOUNTRY RESTAURANT, cerporation, hereinafter referred to .3% a g , 2000, by I INC., a Pennsylvania as "seller", and SAM TAYLOR ENTERPRISES, INC., a Pennsylvania Corporation, and SAMUEL V. SPALLA and MELISSA A. SPALLA, hereinafter referred to as ,,Buyer". WITNESSETH: WHEREAS, Seller is presently the owner of a restaurant which conducts its business at 946 Baltimore Street, Hanover, Pennsylvania, under the trade name of the Dutch Country Restaurant; and WHEREAS, Seller desires to sell and Buyer desires to buy al! of the assets of said business; and WHEREAS, the parties hereto desire to set forth herein their respective undertakings relative to the sale and purchase of said business~ NOW THEREFORE, in consideration of the premises and intending to be legally bound hereby, the parties agree as follows: 1. business Seller shall sell and Buyer shall purchase Seller's owned and operated at 946 Baltimore Street, Hanover, Pennsylvania, under the name of Dutch Country Restaurant, Inc., including equipment, inventory, and good will, as of the date of transfer and all other assets of Seller's business, tangible and intangible, all of which are more fully described and enumerated in the attached Schedule "A" which is made a part hereof. the purchase price for the Dollars 2. Buyer shall pay to Seller as foregoing the sum of Two Hundred Thousand ($200,000.00) payable as follows: (a) The payment of the Two Hundred Thousand ($200,000.00) Dollars te be amortized over a five (5) year term, together with interest at the annual rate of 8.5% to be paid in monthly installments in the amount of $4,103.32. Payments shall be made once a month beginning 30 days from this date until the principal and interest are paid in full. There shall be no penalty for prepayment of the loan. Buyer has submitted three monthly installment payments, each in the amount of $4,103.32, as of this date. 3. The parties agree that excluded from the assets to be sold hereunder as part of the business are any tools and equipment which belong to Garry Bentzel personally and those antiques and other personal items located within the restaurant that are owned personally by Garry Bentzel which the parties have heretofore agreed upon and all craft items which are owned by Wendy Bloom. 4. Between the date of execution of this agreement and settlement date, Buyer shall operate as an on going business in the same manner as Seller currently operates the restaurant as of the date of this agreement. The parties agree that the transfer of the operation of the business shall be effective as of midnight of this date and that Buyer shall be responsible for all costs associated with the running of the business as of this date. The parties acknowledge that Buyer shall be responsible for all accounts payable, liabilities and debts of the Seller when Buyer takes over the business. 5. Seller agrees to give unto the Buyer herein a Bill of Sale for the assets to be transferred herein upon the payment of the purchase price in full as set forth above. The parties agree that the purchase price shall be paid in full on or before five (5) years from the date hereof. 6. Seller warrants that it is the owner of the assets to be transferred herein. Seller also warrants that the same, as of the date of closing, shall be subject to certain liabilities and encumbrances all of which are set forth in more detail in Schedule B, attached hereto and made a part hereof. Seller warrants that it is the owner of the equipment and all other assets of the restaurant business which are the subject of this agreement and the same as of the date of closing will be subject to the liabilities set forth in Schedule B. 7. Buyer agrees that he will attempt to provide health insurance benefits comparable to those which currently exist in Seller's business for both Garry Bentzel and Ruby Bentzel by Buyers until such time as Ruby Bentzel reaches age sixty-five (65). The parties specifically agree that all possible avenues will be explored so as to implement an insurance plan that is most effective for all parties involved. 8. Should Buyers fail to pay the payments set forth above they shall be in default of this obligation and Seller shall, after ten (10) days written notice of such default, be entitled to repossess said assets and Buyer shall forfeit any interest in said asse~s and shall forfeit as liquidated damages any and all payments made to Seller by virtue of this contract up te the time of such default. 9. The parties agree that Buyer shall be in default of this agreement and shall forfeit all rights hereunder unto the Seller if at any time prier to the payment ef the purchase price in full the cumulative operating losses of the restaurant business exceed Fifty Thousand ($50,000.00) Dollars above the current operating losses as determined by Seller's accountant, Rager, Lehman & Houck, PC. Any calculation involving cumulative operating losses as they pertain to this section shall not include any outstanding accounts payable that exist as of the date of this agreement. 10. Buyer agrees to submit to Seller or Seller's designated agent monthly balance sheets and income statements and a semiannual accountant's review report. 11. Until the purchase price is paid in full, the Seller or its designated agent shall retain the right to enter upon the business and observe the business operations on a weekly basis for a time period of net more that two {2) hours in length. seller or its designated agent's presence will be solely for observational purposes and Seller and/or its agent will not directly discuss business issues with employees er direct any employees without the previous consent of Buyers. 12. The parties agree that Gary and Ruby Bentzel shall continue te work for the Buyers on an as needed basis and such work schedule shall include one weekend per month at hours te be agreed upon by the parties and at such compensation as the parties can agree as requested by Buyer. 13. The parties acknowledge that the business name shall be transferred herein for Buyer's usage and Seller agrees to sign any and all documents necessary to transfer said name to Buyer at closing so that Buyer may continue to use the business 14. Default: (a) Definition - Any of the following occurrences constitutes a default under this Agreement: (1) If the Buyer has failed to make payments under Paragraph 2 above or to make any other payments provided for in this Agreement. Buyer waives all rights to any notice of termination for payment due or for failure to make any payments due under this Agreement. (2) If the Buyer should fail to perform any of the terms or conditions of this Agreement other than those pertaining to the payment of consideration as set forth in Paragraph 2 hereof. (3) If any person shall levy upon, take or attempt to take the personal property or any part thereof to be sold hereunder or upon the Buyer's filing a voluntary bankruptcy action, or a creditor of the Buyer placing the dire in bankruptcy involuntarily. (4) If the Buyer shall desert, vacate or abandon the business or if the business operates and shall not be conducted for a period of five (5) consecutive days or if the Buyer shall give notice of its intent to desert, vacate or abandon the business or close the business for a period of five (5) (5) If this Agreement shall, pass to any persen or persons or Buyer herein. consecutive days. by operation of law, entity other than the (b) Rights of the non-defaulting party - Upon the occurrence of a default, the non-defaulting party may exercise any of the following rights and remedies in addition to any other rights and remedies which may be provided in law or in equity: Il) The non-defaulting party may terminate the Agreement and seek damages as the result of such termination including costs of reselling the assets. (2) The non-defaulting party may file an action at law or in equity to enforce its right under the Agreement. (3) The non-defaulting party may recover all attorneys fees, court costs and other reasonable costs incurred in prosecuting or defending any action to enforce its rights under the term of this Agreement or to obtain damages as a result of the default. (c) Rights of Seller upon Buyer's default In the event the Buyer defaults under the terms of this Agreement, the Seller shall have the following rights in addition to those rights and remedies provided in Paragraph (b) above and in addition to the rights and remedies at law or in 6 equity: (1) The Seller may immediately~ or at any time thereafter, reassume possession of the property to be sold hereunder without being liable for any damages therefore. (2) The Seller may resell the whole or any part of the personal property to be sold hereunder for a period equal to or greater or less than the remainder of the term of this Agreement at such consideration and upon such terms and conditions as the Seller shall deem reasonable, to any person whom it may deem suitable and satisfactory for the use and purpose which it may deem appropriate. 15. ~onfession of Judqment: If Buyer shall at any time be in default in the payment of the purchase price as set forth in paragraph 2 above or in the performance of any of the covenants, terms, conditions or provisions of this Agreement and the entire balance for the entire term shall fall due and be collectable at once, Buyer hereby authorizes any attorney of any court of record as often as default be made in the payment of said consideration to appear for the Buyer and confess judgment or judgments against Buyer for the amount then due and any and all charges or other payments then due and collectable with the right to issue execution with attorneys commission of fifteen (15%) percent for collection, plus costs of suit, without stay of execution, waiving inquisition and exemption. On the failure of the Seller to pay the payments as due or to keep all the covenants of this Agreement, then the Buyer hereby author±zes and empowers any attorney of any court of record to appear in said court and confess a judgment in an amicable action of ejectment for the premises and authorize the immediate issuing of a writ of execution for possession of the property to be sold hereunder and for all payments due and costs, without asking leave of court, to be released only upon the payment of all payments due, costs of suit and fifteen (15%) percent attorneys commission. 16. Ail covenants, warrants and representations herein shall survive this agreement and the closing date. 17. This agreement shall be binding upon the heirs, administrators, executors and assigns of the parties. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year aforesaid- SAM ~AYLOR ENT RPRISES, INC. ~kM~mL-~g'. SP~LLA ~ELISSA A. SPALLA Schedule "~" Assets of Dutch Country Restaurant, Inc. to be transferred herein: Schedule B Debts and obligations of Dutch Country Restaurant, Inc.: LEASE/PURCHASE AGREEMENT Made the 1st day of January, 2000, between GARRY L. BENTZEL and RUBY A. BENTZEL, of 1031 Baer Road, Hanover, Pennsylvania 17331, hereinafter called "Landlord", and SAM TAYLOR ENTERPRISES, INC., a Pennsylvania corporation with principal offices at 946 Baltimore Street, Hanover, Pennsylvania 17331, hereinafter called "Tenant". TERM - Landlord, intending to be legally bound hereby, upon the following terms and conditions, leases to Tenant the premises located at 946 Baltimore Street, Hanover, Pennsylvania 17331, the premises being known as The Dutch Country Restaurant, for a period of five (5) years beginning January 1, 2000 and ending December 31, 2005. Tenant and Landlord, intending to be legally bound, and in consideration of the terms hereof, agree: 1. RENT - Tenant agrees to pay rent which will be equal to the monthly amount of the Landlord's mortgage payments which are currently payable to People's Bank of Glen Rock, plus the sum of One Thousand Dollars ($1,000.00) per month for taxes all of which will be paid in equal weekly installments for the term of the lease. 2. Tenant agrees to use the premises for a restaurant, banquet hall and meeting facility related purposes only and for no other purposes. 3. Tenant recognizes that the premises are in good and sound order and condition, and agrees to maintain the premises and deliver the same up to Landlord in the same condition at the end of this lease less reasonable wear and tear. Should Tenant fail to deliver said premises in good and sound order and condition, Landlord shall have all rights provided by law or this agreement. 4. SUBLEASING - Tenant agrees to not sublet the premises nor assign this Lease/Purchase Agreement without express consent of Landlord. Any sublease shall be a breach of this lease and give Landlord the immediate right of reentry and repossession of such premises. Tenant shall be responsible for all rent due for the unexpired term of such lease. 5. UTILITIES Ail utilities for said premises will be paid by Tenant and Tenant shall be solely responsible for maintenance and repairs to the demised premises. 6. If there is a default in payment of rent or breach of any terms of this lease, Landlord may obtain immediate possession of the premises and Tenant hereby waives any provisions of law entitling it to thirty (30) or fifteen (15) days notice. 7. Landlord shall not be liable to Tenant or their visitors f?r any harm or injuries to Tenant or their visitors, and Tenant specifically agrees to hold Landlord harmless for any injuries suffered by Tenant or their visitors or any persons caused by defects in the premises or by any means that were visible or known of by Tenant and not immediately reported to Landlord in writing. 8. CONDEMNATION - Should the premises be condemned by eminent domain proceedings, Tenant shall be entitled to any damages provided by law for removal from the premises. Landlord shall be entitled to all other damages. 9. FAILURE TO PAY RENT - The failure to abide by all conditions and terms set forth in this lease, including the failure to pay rent, shall constitute a default and shall give Landlord the right to immediate possession of the premises upon the terms and conditions set forth above. 10. Tenant shall not use the premises for any unwholesome, noisy or immoral purpose which offends the residing neighbors nearby. Any practice for which Landlord receives a formal complaint from the local municipality or police department which continues after Tenant has been informed in writing of said Complaint shall render Tenant in default of this Lease and this Lease shall be terminated. 11. Tenant shall not violate any law, regulation or ordinances in its use of said premises. 12. The failure of Landlord to insist upon strict performance of the terms of this agreement shall not operate nor be considered as a waiver, release or relinquishment thereof. 13. Tenant shall not alter or modify the premises or install any item that is affixed to the real estate without Landlord's consent. Any modification to the structure or the affixing of any item to the premises shall be deemed a fixture and become property of the Landlord. 14. Tenant shall agree to keep the premises in a clean and sanitary condition, and to remove all refuse or other garbage which may accumulate upon the same during the said term, or any renewal thereof, or failing therein, to pay to Landlord double the cost of removing the same to be recovered the same as rent due and in arrears. 15. OPTION TO PURCHASE. For and in consideration of the sum of One ($1.00) Dollar to Landlord in hand paid by the Tenant, receipt whereof is hereby acknowledged, and in further consideration of Landlord's agreement to sell their restaurant business to Tenant, (by separate agreement executed on this date) Landlord hereby agrees to sell and convey to the Tenant the demised premises upon the following terms and conditions: 2 E The price or consideration shall be One Million ($1,000,000.00) Dollars which sum shall be paid as follows: 1. The above sum shall be paid in full on or before December 31, 2005, with Tenant to receive a credit against said purchase price for twenty-five (25%) percent of the principal paid on Landlord's first mortgage from the commencement of the lease until the purchase price is paid in full. The parties acknowledge that the current principal balance on the Landlord's lien as of the initial date of the lease is The premises are to be conveyed free and clear of liens, encumbrances and easements, EXCEPTING HOWEVER, the following: existing building restrictions, ordinances, easements of roads, privileges or rights of public service companies, if any; otherwise the title to the herein described lot or piece of ground shall be good and marketable or such as will be insured by any reputable Title Insurance Company at the regular rates. Settlement shall be made on or before the 31st day of December, 2005, said time to be of the essence of this agreement, unless extended by mutual consent in writing endorsed hereon. During the term of this lease, Landlord shall be solely responsible for the payment of the real estate taxes using the funds that Tenant is paying as part of the rental fee. Ail municipal assessments against the premises shall be the responsibility of the Tenant herein. Tenant shall be responsible for insuring the property for fire and other hazards and shall lis~ the Landlord as a loss payee to the extent of Landlord's interest in the property. In addition, Tenant shall be solely responsible during the term hereof for all utility bills and the costs of repairs and maintenance of the premises as set forth in paragraph 5 above. It is understood and agrees that all imposed by any government body shall Landlord and Tenant. transfer taxes be borne equally by In the event Landlord is unable to give a good and marketable title or such as will be insured by any reputable Title Insurance Company, as above set forth, Tenant shall have the option of taking such title as Landlord can give without abatement or price, or of declaring this agreement null and void. Should the Tenant fail to exercise this option, then all sums paid by Tenant to Landlord in the form of rental payments, shall be retained by Landlord as liquidated damages for the use of the property during the term hereof and Tenant shall not be entitled to any refund thereof. Any notices or ordinances filed subsequent to the date of this agreement by any governing authority for which a lien could be filed are to be complied with at the expense of the Tenant. Any such notices or ordinances filed prior to the date of this agreement are to be complied with at the expense of Landlord. The parties agree that this option to purchase may be assigned by the Tenant herein unto the Tenant's principal stockholders Samuel V. Spalla and Melissa A. Spalla, of 946 Baltimore Street, Hanover, Pennsylvania 17331. 17. Contemporaneously herewith the parties are executing an Installment Sales Contract for the sale of the business known as The Dutch Country Restaurant. The Installment Sales Contract will require the Tenant herein to pay monthly installments to the Landlord for the purchase of the business. The parties agree that in the event of a default on either agreement (this Lease Agreement or the Installment Sales Agreement for the transfer of the business) that both agreements will be deemed in default and the Landlord/Seller shall have any and all remedies available at law to repossess the real estate and the business assets. 18. The parties agree that the Tenants herein may sell the business to be purchased by the Installment Sales Contract executed contemporaneously herewith and the real estate which is the subject of this Lease Agreement to a third party with the written approval of the Landlord herein upon terms and conditions agreed upon by any such third party purchaser and the Landlord and Tenant herein. The proceeds of such sale shall then be divided between the Landlord and Tenant on a percentage basis according to the terms of the option set forth above with the Tenant being credited with monies paid on the purchase price pursuant to the option set forth above. 19. This agreement contains the whole agreement between Landlord and Tenant and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever. 20. This agreement shall not be assigned or transferred by Tenant without the written consent of Landlord being first had and obtained. Subject to the said provision regarding assignment by Tenant, this agreement shall extend to and bind the heirs, executors, administrators and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties to the agreement have hereunto set 4 their hands and seals, the day and year first above written. W I TNESKS: GA~t~ L. BENT~EL RUB~ A. BENTZEE ATTEST: SAM T~.LOR ~E~S, INC. By: ~.//~'~/~'~---/ (SEAL) SAMUEL V.~ SPALLA MELISSA A. SI~ALLA F:\Document\91t335\lease purchase agreement.wpd 5 ASSIGITMENT ASSIGNMENT made this 1st day of January, 2000, by and between DUTCH COUNTRY RESTAUP3~NT, INC., a Pennsylvania Corporation, (hereinafter referred to as "Assignor"), and GARRY L. BENTZEL and RUBY A. BENTZEL, husband and wife, of 1031 Bait Road, Hanover, Pennsylvania, (hereinafter referred to as "Assignee"), WITNESSETH THAT: WHEREAS, the Assignor is currently selling certain business assets under an Agreement of Sale dated January 1, 2000 to Sam Taylor Enterprises, Inc.; and WHEREAS, the Assignor wishes to assign its rights to collect payment under said Agreement unto the Assignee herein; and WHEREAS, the parties hereto desire a writing of their Agreement of this Assignment whereof the following is a statement: NOW, THEREFORE, in consideration of the above recitals Assignor assigns unto Assignee all its right, title and interest in and to the collection of payments in that certain Agreement between the Assignor and Sam Taylor Enterprises, Inc. which Agreement is dated January 1, 2000. The parties further agree as follows: 1. under the Agreement dated January 1, Assignor shall retain title to the assets to be sold 2000 with Sam Taylor Enterprises, right to the 2 of said Agreement. 2. The parties agree that in the event of Inc. but shall assign unto the Assignee herein the collection of all payments as set forth in Paragraph the default of the obligor (Sam Taylor Enterprises, Inc.) in said Agreement, the Assignee herein shall indemnify the Assignor for any and all costs associated with repossessing the property to be sold thereunder. 3. Assignor hereby agrees to cooperate in any and all means necessary to repossess the property to be sold under the above referenced Agreement should the Obligor (Sam Taylor Enterprises, Inc.) default in any of the terms. Assignor herein grants and gives unto the Assignee any and all remedies which Assignor may have in the enforcement of said Agreement in the event of the Obligor's default. IN WITNESS WHEREOF, we have hereunto set our hands and seals this /~\ day of ~',k~3o~, % ATTEST: WITNESS: 2000 . DUTCH COUNTRY RESTAURANT, INC. GARRY ~/BENTZEL 6'/ RUBY n. 'B~NTZEL CREDIT APPLICATION AND AGREEMENT lADE NAME (DBA) ~ Corporation registered to do business in PA [~ Sole proprietorship [2~ Partnership :NGTH OF TIME OPERATING/OWNING THIS ESTABLISHMENT: , you: [] Own ~ Rent [] Currently purchasing property . :. ,PROXIMATE CREDIT REQUIREMENTS $ Per iNNSYLVANIA SALES TAX EXEMPTION NUMBER: If you hold a valid Pennsylvania Blanket Sales Tax Exemption Certificate, ,ase attach executed form REV 1220: Exemption Certificate. BUSINESS ADDRESS /, State /--~,4-rlooff F- / /'2~-3 ~ / Bus. Phone mhandise receiving hours ~cial delive~ instru~ions: Contact name: Address PO Box # City, State Zip. Bus. Phone FAX#_( ). VIES, ADDRESSES, PHONE NUMBERS OF ALL OWNERS/PARTNERS: long have you resided at this location? long have you resided at this location.'? Social Security Home Phone ~_( socia Home Phone #_('~/7) P--'~--c~C3 t~,, le Social Security #. le Address long have you resided at this location? -- OVER -- Home Phone #_( ) REFERENCES: Name, Address and T2~.ephone #: Bank(s) ~'~-~--~10 le S *L.~ ~'f/~- '~-L~ Suppliers; 1. In consideration for the extension of credit and intending to be legally bound hereby, ~.undersigned Buyer hereby agrees that the following terms will govern any charge account established by John Gross & Co. (Seller) for Buyer's benefit. 1. Payment. Buyer hereby agrees to pay the Time Sale Price of purchases charged to Buyer's account. The '~me Sale Price shall consist of the cash sale price, including applicable sales taxes and delivery charges, if any, plus service charges and any finance charge which may accrue pursuant to paragraph two (2) hereunder. 2. Past Due Accounts. Buyer hereby agrees that interest charges of 1½ % per month or 18% per annum will be assessed on any account balance which is not satisfied within 30 days of the Billing Date. 3. Seller's remedies. In the case of Buyer's Default, Buyer's entire account balance shall become due and payable. Seller's waiver of any Default shall not operate as a waiver of any other Default. If Buyer's account is referred for collection to any attorney, Buyer will pay, to the extent permitted by law, reasonable attorney's fees and court costs incurred. 4. Seller'b Discretion. The extension of temporary.credit pursuant to this Agreement is within Seller's sole discretion and Seller may terminate this Agreement at any time and for any reason. 5. Credit Check. Suyer hereby authorizes the firms and banking institutions listed above to furnish any information request- ad by Seller to process this application; and Suyer agrees that neither those firms nor their employees shall be liable for any claim ~f damages as a result of furnishing the requested information. OFFICE USE ONLY: Sales Person Level__. Type Account Terms Limit Special Instructions &pproved By in ~e ~afion of the hWS~t, ~¢ 1~ o f ~e docmmt ~ ~t of ~tel ~ ~t my ~, I ~ve r~d ~c do~ ~d to ~o ~tcnt ~ it ia b~ upm ~ w~ I haYe ~v~ to my co~s~l, it is ~o ~d co~ ~ ~e b~t ofmy~wled~, ~o~on ~ ~t~f To to ~t tho cont~t off ~ doc~t i$ tMt of cocci, I ~ve ro~ up~ co~l ~ ni~ ~s vedflcatiom TMs statist ~d v~fion ~ ma~e s~j~ to ~e p~fi~ o f 1 a Pa. ~.S. 8~:cfi~ 4904 av~t% I may~ s~j~ot to ~m~ )-Ob~ C~s & Company, ln~- , CERTIFICATE OF SERVICE I, Carl C. Risch, hereby certify that a copy of the foregoing Second Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanover, PA 17331 MARTSON DEARDORFF WILLIAMS & OTTO By Carl C. Risch Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 12/18/2003 TItU 15:37 FAX 717452+0843 REAL ESTATE DEPART NT 001/002 Menges, Gent & McLaughlin, LLP A I rORNEYS-A I-I,A ANI)RISW 1-1. SHAW December 18, 2003 VIA FACSIMILE AT 717-243-1850 Christopher E. Rice, Esquire Martson, Deardor ff, Williams & Otto 10 East High Street Carlisle, PA 17013 RE: John Gross & Company, Inc. v. Bentzel et al. Docket No.: 02-103 Dear Mr. Rice: Please accept this letter in response to your letter dated Dcccmbcr 12, 2003 regarding your proposed Second Amended Complaint, Our office is opposed to :md will not support your request to file an amended complaint. From the outset, you have included the Bentzels as individual defendants. There is uo reason why you could not have included the proposed averments at the initial stage of the pleadings since the new averments do not presCmt any infom~ation that was not known during the initial pleadings stage. Further, we have already extensively litigated many of the issues through preliminary objections thal you now propose to raise in your second amended complaint. Second, our clients will be prejudiced by being required to expend additional money to defend a claim that could have been defended earlier. This especially becomes important since there is no support for your new proposed avermentS. For the above reasons, we will not concur in your filing ora Second Amended Complaint, and will oppose any leave of court that you may seek. If you should have any further questions or concerns regarding this matter, please do not hesitate to contact me. Thank you. PLEASE R I~,pI,Y 'FO: ~ 145 EASTMARK[WSTREET /' York,, PA 1740 I 'I'F,L~PltONE (717) 843-8046 I'O11, FREE: 1-866-464-5297 FAX (717) 854-4362 E-mail: m gm (a)yorklawo ffi ce.corn n 1157 EICI.IEI,Bt.;RGfiR STREET HANOVER, PA 17331 TELEPHONE (717) 632-1784 FAX (717) 632-2433 E-mail: mgm@hanoverlaw.com ~ 18 E. Krug S'rREET, 2~" FLOO~ LANCAS'rBR, PA 17602 TELePrlO~E (717) 560-5068 F^x (717) 735-7709 Eqnail: mgm~yorklawoffice.eom CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition for Court Approval was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES, GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 17331 Clmstopher E. Rice Date: December 2Z, 2003 JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED MOTION FOR PROTECTIVE ORDER AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and moves as follows: 1. On or about December 9, 2003, Defendants sent a letter and subpoena to Mr. John Gross notifying him that he was to attend a deposition as stated in the subpoena. 2. Mr. Gross is the founder of John Gross and Company, Inc.; however he retired in 1995 from the business. 3. Mr. Gross had performed some consulting on a part-time basis after his retirement, but currently has no ownership interest in the business. 4. Mr. Gross had no involvement in the Bentzel matter which lead to this lawsuit. 5. On or about December 11, 2003, Plaintiff sent a letter via facsimile to Defendants demanding that Defendants withdraw the subpoena no later than Tuesday, December 16, 2003. Plaintiff stated that a protective order would be sought if the subpoena was not withdrawn by that time. 6. Defendants responded through a letter dated December 15, 2003, correctly stating that Mr. Gross was listed in Question #2 of Defendants' First Set of Interrogatories as a person with knowledge of the facts or cimumstances of the matter. 7. Plaintiff immediately notified Defendant that Mr. Gross was inadvertently included in Question #2 and, therefore, should be removed and the subpoena withdrawn. 8. Plaintiff is unaware of how Mr. Gross' deposition could possibly lead to the discovery of admissible evidence given that Mr. Gross had absolutely no role in the dispute giving rise to the above lawsuit. 9. Plaintiff believes, based on the facts above, that the deposition is designed solely to unreasonably burden and annoy Mr. Gross and the Plaintffin violation ofPa. R.C.P. 4012(a). 10. To this date, the subpoena has not been withdrawn and Mr. Gross' deposition remains scheduled for January 6, 2004. WHEREFORE, Plaintiff requests this Honorable Court GRANT the above Motion for Protective Order, or, in the alternative, schedule an argument in order to resolve this dispute. Date: December ~,~"' , 2003 MARTSON, DEARDORFF, WILLIAMS & OTTO Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Christopher E. Rice, Esquire PA Attorney I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Protective Order was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES, GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 17331 Christopher E. Rice Date: December ~.~-, 2003 JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED RULE TO SHOW CAUSE AND NOW, this z 5' day of ~e-~,~_,6~- , 200 3 , the Defendants are D1RECTED to show cause why the relief sought in the Petition for ,Court Approval to file Plaintiff's Second Amended Complaint should not be granted. Rule returnable /6~ days after service. BY THE COURT, JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this ,zq' day of .~et_e~/~,~ , 200.~, upon consideration of the foregoing Plaintiffs Motion for a Protective Order, it is hereby ordered that an argument on this issue will take place at the same time and place as the argument for Plaintiff's Motion dated November 24, 2003, which is scheduled on January 7, 2004, Courtroom No. 4, beginning at 2:00 o'clock, p.m. of the Cumberland County Courthouse, for the convenience of both parties. Further, it is so ordered that the January 6, 2004 deposition of John Gross is stayed. BY THE COURT, [. JOHN GROSS & COMPANY, 1NC. Plaintiff VS. GARRY L. BENTZEL and RUBY : A. BENTZEL, t/d/b/a DUTCH : COUNTRY RESTAURANT and : DUTCH COUNTRY : RESTAURANT, 1NC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW 02-103 CIVIL JURY TRIAL OF TWELVE DEMANDED IN RE: OBJECTION TO SUBPOENA ORDER AND NOW, this J ' day of January, 2004, the objection of the defendants to the subpoena seeking the personal banking records of Garry L. Bentzel and Ruby A. Bentzel is SUSTAINED. This order is entered, however, without prejudice to the plaintiff to re-serve the subpoena following resolution of its pending motion to amend complaint. BY THE COURT, ~/Carl C. Risch, Esquire For the Plaintiff Douglas H. Gent, Esquire For the Defendants :rlm OI-o -Oq K/~. }tess, J. JOHN GROSS & COMPANY, INC. Plaintiff VS. GARRY L. BENTZEL and RUBY : A. BENTZEL, t/d/b/a DUTCH : COUNTRY RESTAURANT and : DUTCH COUNTRY : RESTAURANT, 1NC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-103 CIVIL JURY TRIAL OF TWELVE DEMANDED IN RE: MOTION OF THE PLAINTIFF FOR PROTECTIVE ORDER ORDER AND NOW, this ~z ' day of January, 2004, the motion of the plaintiff for protective order, seeking to bar the deposition of John Gross, is DENIED. BY THE COURT, Zarl C. Risch, Esquire For the Plaintiff /Douglas H. Gent, Esquire For the Defendants :rlm Ol -O 'Oq ess~ J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY L. BENTZEL and RUBY A. BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW ANSWER TO PLAINTIFF'S PETITION FOR SECOND AMENDED COMPLAINT AND NOW COMES, this 'z;~day of January, 2004, the Defendants by and through their attorneys, Menges, Gent, McLaughlin, Cunningham & Kalasnik, LLP, and file this Answer To Plaintiff's Petition For Court Approval To File Plaintiff's Second Amended Complaint: I. Admitted. 2. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of Plaintiff's averment. 3. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of Plaintiff's averment. As a matter of further response, all of the information now included in Plaintiff's Proposed Sece~nd Amended Complaint was known, or available to Plaintiff prior to the depositions by Plaintiff on November 17 and 18, 2003. 4. Denied. It is specifically denied that Plaintiff did not have sufficient information prior to conducting depositions. By way of further answer, the depositions of November 17 and 18, 2003, did not produce any factual information establishinl~: any of the elements necessary to pierce the corporate veil. Further, Plaintiffengaged in extensive discovery prior to the depositions, all of which were responded to by the Defendants with substantial amounts of written material. 5. Admitted in part and denied in part. It is admitted that the Defendants did not provide the Plaintiff with a copy of the Assignment; however, none of the Plaintiffs Request For Production of Documents was designed to reveal said Assignment. In fact, the Assignment would have been completely non-responsive to any of the Plaintiff's Requests For Production of Documents or Interrogatories. 6. Denied. Paragraph 6 of Plaintiff's Petition sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has sufficient evidence to pierce the corporate veil. Further, the Defendant responds to subparagraphs a-n as follows: The depositions did not reveal any evidence that the Assignment was without consideration or that the Assignment failed to include the two minority shareholders of the corporation; It is denied that the depositions revealed any evidence of commingling of corporate and non-corporate funds; It is denied that the Assignment of the rights of Dutch Country Restaurant, Inc. to collect the installment payments from Sam Taylor Enterprises, Inc. to the individual Defendants establishes anything relating to piercing the corporate veil; It is denied that the information set forth in sub-paragraph d constitutes evidence establishing anything relating to piercing the corporate veil. In fact, the information set forth in sub-paragraph d relates to business activities that occurred prior to January 1, 2000, while Plaintiff's Complaint establishes the debt it is suing for was incurred and accrued subsequent to January 1, 2000. It is denied that Dutch Country Restaurant, Inc. failed to maintain adequate capital after repossessing the assets of the restaurant business fi.om Sam Taylor Enterprises, Inc. as a result of a default. By way of further answer, this information does not constitute evidence that establishes any evidence of piercing the corporate veil and pertains to activity after September 2001, when the Plaintiff's complaint alleges that all of the debt that it has sued for was incurred and accrued between January 1, 2000 and February 7, 2001. Denied. The depositions did not establish any evidence that the rights of other stockholders were ignored. The Plaintiff does not have standing to raise the rights of minority stockholders of Dutch Country Restaurant, Inc. and the same is completely irrelevant to piercing the corporate w:il by a creditor. Denied. The Defendants have not dissolved Dutch Country Restaurant, Inc. and the same operates today as an active corporation in good standing in Pennsylvania. The irrelevance of this allegation to piercing the corporate veil is obvious. Denied. Neither statutory, case law, nor the common law of Pennsylvania required Dutch Country Restaurant, Inc. to notify any creditors of the Agreement 3 of Sale, other than the Pennsylvania Dept. of Revenue, nor that it is required to notify creditors when Dutch Country Restaurant, Inc. repossessed the assets it had sold to Sam Taylor Enterprises, Inc. Denied. It is denied that no provision was made for creditors to be paid. The Agreement of Sale, which is attached as Exhibit C to the Petition to File a Second Amended Complaint, in paragraph four, provides that Sam Taylor Enterprises, Inc. was liable for all outstanding accounts payables and other debts of Dutch Country Restaurant, Inc. when the business was transferred January 1, 2000. Further, the Assignment of the installment payments is expressly permitted by law. By way of further answer, none of the deb~I sued for by the Plaintiff constitutes debt owed by Dutch Country Restaurant, Inc. to the Plaintiff. All of the debt sued for by the Plaintiff consists of charges that accrued after January 1, 2000, the date of sale of the assets of the business. Denied. The depositions did not provide any infurmation or evidence to support the allegation that the individual Defendants were siphoning corporate funds to themselves by way of the Assignment. As stated[ above, the Assignment is expressly permitted by law and is a very common procedure relating to the sale of business assets under an installment agreement as was testified to by Karl Lehman in his deposition on November 18, 2003. It is admitted that the individual Defendants used the income from the payments made to them under the Assignment for living an,~4 other personal expenses. This was the primary income of the individual Defendants and essentially constituted a 4 8. 9. 10. 11. part of their retirement. There is nothing illegal, unlawful, or fraudulent about this and any suggestion by the Plaintiffthat it is is expressly denied. Further, this does not establish any element of piercing the corporate veil. It is denied that any of the allegations set forth :in subparagraph I constitute evidence or establish any element of piercing the corporate veil. The Agreement of Sale expressly provides that if Sam Taylor Enterprises, Inc. defaulted in making its payments under the agreement to the Defendants, that as part of any repossession of the assets, Sam Taylor Enterprises, Inc. also forfeited all payments it had made under the Agreement of Sale as liquidated damages (see paragraph eight of the Agreement of Sale). The depositions do not establish any evidence that establishes that the Defendants operated the corporate Defendant with personal funds. Further, none of this is evidence that tends to establish any element of piercing the corporate veil. Denied. The depositions did not provide any ev:idence that the individual Defendants used the assets of the corporation as if the assets were the personal assets of the individual Defendants. This is a blatant and bald-faced misrepresentation on the part of the Plaintiff to the Court. Admitted Admitted. Admitted. Admitted. Admitted. 5 12. Admitted. 13. Denied. Paragraph 13 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Defendants will not be prejudiced. The allegations set forth in the Plaintiff's Petition For Court Approval to File a Second Amended Complaint, and all of the additional allegations set forth in the Second Amended Complaint evidence that the Plaintiff and its counsel lack any knowledge or understanding of an installment asset sale of the assets of a corporate business. The Plaintiff is intentionally and substantially misrepresenting to the Court what the depositions established by way of the sale transaction and activity related thereto. Further, the Plaintiff is attempting to use various legitimate aspects of the sale transaction in a grossly inappropriate way to try to claim that it has evidence to pierce the corporate veil. If the Plaintiff is permitted to file its Second Amended Complaint with all of its false and deceptive allegations, the Defendants will be forced to retain expert witnesses and to engage in other activity that would be necessary to defend themselves against what are universally recognized as very ordinary, usual and customary actions in an installment sale of the assets ora corporate business which consists ora "mom and pop" business. The Plaintiff's pursuit of all of this in an effort to pierce the corporate veil is dc,ne solely and intentionally by the Plaintiff for the purpose of harassing and intimidating the individual Defendants in an effort to force the individual Defendants to pay a debt obligation that the Plaintiff and Plaintiff's counsel fully know the individual Defendants are not liable for under any accepted principles of law. These additional claims are being brought in bad faith. WHEREFORE, the Defendants respectfully request the Honorable Court to Deny the Plaintiff's Petition For Court Approval To File Plaintiff's Second Amended Complaint. 6 NEW MATTER 14. Paragraphs 1 through 13 of Defendants' Answer are hereby incorporated by reference as if set forth in full. 15. The Plaintiff's proposed Second Amended Complaint merely sets forth a list of additional factual allegations, which do not add anything to the First Amended Complaint. In fact, the additional allegations could be characterized as merely pleading additional evidence. 16. The Plaintiff's proposed Second Amended Core,plaint does not contain any new cause of action or theory of recovery in addition to or different than the Plaintiff's First Amended Complaint. Both complaints contain the identical counts for breach of contract and a claim based on quantum meruit. 17. The Plaintiff's proposed Second Amended Complaint does not contain any allegations that would tend to establish the requirements for piercing the corporate veil. In applying the test for piercing the corporate veil any court must start from the general rule that the corporate entity should be recognized and upheld unless specific, unusual circumstances call for an exception. The unusual circumstances must be such as to show that the corporate form of doing business is being used to defeat public convenience, justify wrong, protect fraud or defend crime. Sams v Redevelopment ~4uthority, 431 Pa. 240, 244 A.2d 779 (1968). Plaintiff's proposed Second Amended Complaint fails to contain any allegations that would tend to establish that the individual Defendants used Dutch Country Re,'~taurant, Inc. to defeat public convenience, justify wrong, protect fraud or defend a crime. 7 WHEREFORE, Defendants respectfully request the Honorable Court Deny Plaintiff's Petition For Court Approval To File Second Amended Complaint. Date~,2r~ /5/; 3-o07 Respectfully submitted, MENGES, GENT, McLAUGHLIN, CUNNINGHAM & KALASNIK, LLP ~ g as I-Z. Gent, Esquire Sup. Ct. I.D. No. 29964 Andrew H. Shaw, Esquire Sup. Ct. I.D. No. 87371 Menges, Gent & McLaughlin, LLP 1157 Eichelberger Street Hanow~r, PA 17331 (717) 6.32-1784 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, INC., Plaintiff, GARRY BENTZEL and RUBY A. BENTZEL and DUTCH COUNTRY RESTAURANT, INC., Defendants. NO.: 02-103 CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned, being duly sworn, does hereby state: that a true and correct copy of Defendants' Answer to Plaintiff's Motion for Protective Order was served upon the following at the address indicated below, via hand delivery. Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013-3093 Attorney for Plaintiff Date By: ~2~]'~ Anc~r~w~. Sh~v, ]gsquir~ - Menges, Gent and McLaughlin, LLP Sup. Ct. I.D. #87371 145 East Market Street York, PA 17401 (717) 843-8046 Attorney for Defendants F\FILES\DATAFILE\Generai~Archive/GENDOC03\8369 4motion4 Created 11/05/0] 09:49:53AM Re~Ased: 01/16/04 05:06:48 PM 8369 4 JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S MOTION TO COMPEL DISCOVERY PURSUANT TO Pa. R.C.P. 4019 AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files this Motion to Compel, and in support thereof, moves as follows: 1. On or about January 14, 2003, Plaintiff sent to Defendants "Plaintiff's First Set of Interrogatories and First Request for Production of Documents" (Discovery Requests). 2. On or about March 19, 2003, Defendant answered Plaintiff's Discovery Requests. 3 Defendants objected to certain Discovery Requests in bad faith. Specifically, Defendants objected without a proper basis and in order to avoid supplying Plaintiff with information that is both essential and necessary to its case. A copy of Defendants Answers to the Discovery Requests is attached hereto as Exhibit "A". 4. Defendants objected to supplying the answer to Plaintiff's Interrogatories to the following questions: a. Question # (4) - Identify each and every creditor of any or all of the Defendants (corporate or individual), including, but not limited to: lending institutions, credit card companies, service contracts, and suppliers of goods or services; and b. Question # (7) - Identify all communications and/or correspondence between Defendants and any person or company regarding the alleged obligation to Plaintiff. Defendants objected to providing documents pursuant to Plaintiff's Document Requests for the following numbers: a. Number (2) - All documents prepared by the Defendants, or by their representatives, agents, or anyone acting on their behalf, except Defendants' attorneys, which relate to the Defendants or their alleged debt to Plaintiff. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense, or respecting strategy or tactics; b. Number (3) - Copies of all federal, state, and local tax returns for each and everyDefendant (individual, corporate, or partnership) for 1997, 1998, 1999, 2000, and 2001. Include copies of all schedules and supporting documentation; c. Number (4) - Copies of all Defendants' business records from January 1, 1996 until December 31, 2001, concerning the Dutch Country Restaurant, including, but not limited to, invoices, leases, ledgers, fictitious name filings, corporate resolutions, articles of incorporation, bylaws, bank statements, checkbooks, tax withholding documentation, receipts, contracts, service agreements, credit agreements, and cancelled checks; and d. Number (6) - All documentation concerning John Gross & Company, Inc. and the goods and services provided to the Dutch Country Restaurant by Plaintiff, including any proof of payment. On November 17 and 18, 2003, Plaintiff deposed nine individuals. At the depositions, it was revealed to Plaintiffthat Defendants were in possession of certain documents that were both unknown to Plaintiff and crucial to its case. During the depositions, a third party inadvertently made Plaintiff aware of an Assignment that Defendants had in their possession. The Assignment has become a crucial piece of evidence in Plaintiff's case. To this date, Defendants have not provided the information requested above. 10. Plaintiff has been prejudiced by Defendants purposeful failure to provide answers to and documents for the Discovery Requests noted above. 11. Plaintiff must amend its Complaint because Defendants have not been forthright with producing documents and providing information. WHEREFORE, in the interest of preventing further unnecessary delay in this case, Plaintiff requests this Honorable Court issue an Order, compelling Defendants to answer and/or produce documents according to the Discovery Request above. Further, Plaintiff moves for Sanctions as provided by Pa. R.C.P. 4019, to include such relief as is just under the circumstances and to include award of counsel's fees. Date: January ~,.0 , 2004 MARTSO-hI.._DEARDOREF, WILLIAMS & OTTO Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Christopher E. Rice, Esquire PA Attorney I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, 1NC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 · JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S FIRST SET OF INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS TO: GARRY L. BENTZEL AND RUBY A. BENTZEL AND DUTCH COUNTRY RESTAURANT, INC., Defendants, and their attorney, DOUGLAS GENT, ESQ. Plaintiff' directs the following Interrogatories to Defendants pursuant to Pennsylvania Rule of Civil Procedure No. 4006. Defendants are requested to provide verified answers to the following Interrogatories in writing within thirty (30) days after service hereof. Moreover, pursuant to Pa. R. CP. 4009, Plaintiff directs Defendants to produce for inspection, examination, and copying, at the office ofMARTSON DEARDORFF WILLIAMS & OTTO, 10 East High Street, Carlisle, Pennsylvania 17013, not later than thirty (30) days after service of this Request, the following documents requested. I, DEFINITIONS A. "Address" means the street number, street name, city, state or province, country (if other than the United States of America) and, if available, zip code or other mailing code for the place of the designated person's residence or, if a business, the place its business is principally conducted. B. "Any" shall mean "all" and vice versa. C. "Communication" shall mean any transmission of information, the information transmitted, and any process by which information is transmitted, and shall include written communication and oral communications. Exhibit "A" D. "Date" shall mean the day of the month, the month and the year. If only the approximate date is known or available, please state the approximate date, indicating that it is approximate only. E. "Document" is used in its customary broad sense and includes, without limitation, the following items, whether printed, recorded, filmed, or reproduced by any other mechanical process, or written or produced by hand, and whether an original, master, or copy, namely: worksheets; agreements; books; records; letters; accounts; notes; summaries; forecasts; appraisals; surveys; estimates; diaries; desk calendars; reports; communications, including intra-company communications; correspondence; cablegrams; radiograms; telegrams; telexes; memoranda, including intra-company memoranda; summaries; notes and records of telephone conversations, meetings and conferences; notes and records of personal conversations or interviews; ledgers; invoices; contracts; notices; drafts of any documents; business records; charts; plans; specifications; schedules; computer printouts; computer tapes; microfilm; microfiches; photographs; slides, negatives; motion pictures; video recordings; tape or other voice recordings and transcriptions thereof; date compilations from which information can be obtained, or translated, if necessary, through detection devices into reasonably usable form; and any other information contained on paper, in writing or in any other physical form in your actual or constructive possession, custody or control of your agents, servants, employees, representatives, or attorneys. F. "Identify", when referring to a person or persons, means to state the current name, address and telephone number of the persons about whom the information is sought. When referring to individuals, please state the name of their present or last known employer, their office or title, if any, their job description and nature and dates of affiliation with any party to this litigation. G. "Identify", when used with respect to an act (including an alleged omission), communication, occurrence, statement, or conduct (herein collectively called "act"), means to: 1. describe the substance of the event or events constituting such act and state the date when such act occurred; identify each and every person participating in such act; 3. identify all other persons (if any) present when such act occurred; 4. state whether any minutes, notes, memoranda, or other record of such act was made; 5. state whether such record now exists; and 6. identify the person or persons presently having possession, custody, or control of each such record. H. "Identify", when referring to a document, means to provide, as to each such document, the following information: 1. its date; its title, if it has one, all identifying numbers, if any, all other identifying or categorizing designations, and a brief description of it (such as letter, memorandum, manuscript, notes, etc.); 3. its subject matter; the name, title, and address of each person that wrote, signed, initialed, dictated, or otherwise participated in the creation of the document; the name, title, and address of each addressee, and of each other person receiving a copy of it; its present location, and the name and address of its present custodian; if the document is not original, the name and address of the custodian of the original; and any other designation necessary to sufficiently identify the document so that a copy of it may be ordered or obtained from its custodian. If any such document was, but is no longer, in your possession, custody or control, or in existence, state the date and manner of its disposition. I. "Identify", when referring to a corporate entity or entities, shall mean to state the full corporate name and the date and place of incorporation, if known, and its present address and telephone number. J. "Person" shall mean any individual, partnership, joint venture, firm, association, corporation, or business or any governmental or legal entity. K. "Plaintiff" shall mean John Gross & Company, Inc. L. "Relate to" (or a form thereof) shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, analyzing, noting, embodying, containing, mentioning, studying, recording, discussing, evaluating, or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the positions and claims you are making in this action. M. "Reflect" (or a form thereof) shall mean embody, contain, record, note, refer to, relate to, describe, be relevant to, state, or mention~ N. "Sales Agreement" shall mean that written Agreement attached as Exhibit A to Defendants' Answer. II. INSTRUCTIONS A. Whenever an Interrogatory is framed in the conjunctive, it shall also be taken in the disjunctive and vice versa. B. Whenever an Interrogatory is framed in the singular, it shall also be taken in the plural, and vice versa. C The use of any tense of any verb shall be considered also to include within its meaning all other tenses of the verb so used. D. In response to these interrogatories, furnish not only such information as is available to the particular individuals answering and responding to these interrogatories, but also such information which is known to any officer, trustee, director, employee, representative, agent or affiliate of Defendants, including the Defendants' attorneys, investigators, consultants, engineers, contractors and subcontractors, and experts unless such information is privileged from discovery. E. With respect to any document for which you claim a privilege, state the privilege involved, state the factual and legal basis of the privilege, and identify the document, including the general subject matter, but not the substance, by stating (a) the date, (b) author or addressor, (c) addressee and recipients of all copies, (d) type of documents (e.g., letter, memorandum, telegram, chart, photograph, brochure) or some other means of identifying it, and (e) its present location or custodian. F. Whenever in answer to these Interrogatories Defendants refer to a conversation or oral statement, the Answer shall state the date and place thereof, the identity of the persons involved in the conversation or oral statement, the identity of any persons present and the substance of the conversation or oral statement. G. If the person or persons answering these interrogatories are unable to answer or respond to any Interrogatory request fully and completely, after exercising due diligence to secure the information necessary to make such full and complete answers and responses, such person or persons should answer each Interrogatory to the fullest extent possible. In addition, it should be stated that the remainder of the Interrogatory cannot be answered, and whatever information or knowledge such person or persons may have concerning the unanswered portions should be disclosed in full. H. Pursuant to Rule 4007.4 of the Pennsylvania Rules of Civil Procedure, each of the following interrogatories shall be deemed to be continuing so as to require Defendants to file supplementary answers or responses if Defendants know that a response or answer was incorrect when made or is no longer correct in the light of intervening events of which Defendants have knowledge. I. When requested to provide information or identify documents which form the basis for any action, decision or determination, or for any response to these Interrogatories, the request to provide information or identify documents should be construed to include all information and documents which form the basis in whole, or part, for the action, decision, determination, or response. J. If there is insufficient space to answer an Interrogatory, the remainder of the answer should be put on a supplemental sheet. K. If any document or class of documents is being withheld on the basis of any privilege, identify the document or class of documents, the date or dates of the documents, its author or originator, as well as the privilege which is being asserted. INTERROGATORIES 1. Identify each person who participated in furnishing any information with respect to the answers to these Interrogatories and state the number of each Interrogatory for which each person furnished the information. ANSWER: Garry L. Bentzel, Ruby A. Bentzel and Douglas H. Gent 2. Identify every person known to you who has been an employee of the Dutch Country Restaurant since 1995. This includes those persons who were employed by Dutch Country Restaurant, Inc., Garry Bentzel, Ruby Bentzel, Sam Spalla, Melissa Spalla, Sam Taylor Enterprises, Inc., or any combination of these persons or entities. ANSWER: The Defendants have no knowledge of who the employees were for Sam, Melissa Spalla or Sam Taylor Enterprises, Inc. The Defendants have no records of the same. Attached hereto are documents setting forth the information for employees of the restaurant for 1999 and for the latter part of 2001 and 2002 at which time the Corporation repossessed the business and operated the same. The request for information concerning employees prior to 1999 is objected to as not being reasonably calculated to lead to admissible evidence and constitutes nothing more then a fishing expedition designed to harass the Defendants. 3. Identify each and every accountant, financial advisor, bookkeeper, or tax preparer that has been employed by one or more of the Defendants since 1995. ANSWER: Janice Farley 6 Newberry Street Hanover, PA 17331 (717) 632-9327 She was one of two employees responsible to enter financial data at the restaurant into the business's computer system during 1999 and 2001/02 after the corporate Defendant retook possession of the business. Tina Reese 62 Fairview Drive Hanover, PA 17331 (717) 632-7804 She was one of two employees responsible to enter financial data at the restaurant into the business's computer system during 1999 and 2001/02 after the corporate Defendant retook possession of the business. Debra Wentz 1222 Porters Road Spring Grove, PA 17362 (717) 225-3367 Miss Wentz worked part-time for the corporate Defendant as an "in-house" bookkeeper. She was responsible for to keep the general ledger and handle all accounts payable and related matters. Karl Lehman Rager, Lehman & Houck, P.C. 195 Stock Stret Hanover, PA 17331 (717) 637-7300 Corporate Defendant's Accountant and Tax Return Preparer 4. Identify each and every creditor of any or all of the Defendants (corporate or individual), including, but not limited to: lending institutions, credit card companies, service contracts, and suppliers of goods or services. ANSWER: The Defendants object to Interrogatory g4. Said Interrogatory is overbroad, irrelevant and is not reasonably calculated to lead to evidence that would be admissible at trial. This interrogatory is designed solely for the purpose to harass the Defendants. 5. Identify all lawsuits to which one or more of the Defendants have been a party, by providing the court and docket number for each. ANSWER: The Phillips Group, TDBA, Phillips Office Products The Dutch Country Restaurant, Inc., No. 2002-NO-00205-03, Court of Common Pleas for York County, Pennsylvania. The corporate Defendant leased certain equipment from Phillips prior to the sale of the corporate Defendant's business to Sam Taylor Enterprises, Inc. The corporate defendant continued to be liable for said lease with respect to Phillips. Sam Taylor Enterprises, Inc. defaulted on the monthly lease payments. This matter was settled and satisfied. and New Matter: a) State with particularity the factual basis for the following averments in the Answer The denial in Paragraph 8 that "[i]t is denied that Bentzel was the owner of the fictitious name 'Dutch Country Restaurant' on April 4, 2000 and continued to be the owners of said fictitious name." b) The denial in Paragraph 11 that "[i]t is denied that Bentzel had any rights to 'inspect, manage and work for the business....'" c) The claim in Paragraph 41 that "[a]s of January 1, 2000, the only amount outstanding that was due and payable by the Corporation to the Plaintiffwere amounts for goods provided within 30 days prior to January 1, 2000. As of that date, Bentzel did not own any monies in any amount to the Plaintiff" ANSWERS: 6 a and b. The specific terms of the Installment Sales Agreement between Dutch Country Restaurant, Inc. and Sam Taylor Enterprises, Inc., Melissa Spalla and Sam Spalla. In addition, the Defendants anticipate that Melissa and Sam Spalla and Attorney DJ Hart will testify on behalf of the Defendants with respect to said matters. 6c. The Defendants will be relying upon the account records of the Plaintiff(which are already in the Plaintiff's possession) and the corporate Defendants business records for the calendar year 1999; also, the Installment Sales Agreement. 7. Identify all communications and/or correspondence between Defendants and any person or company regarding the alleged obligation to Plaintiff ANSWER: The Defendants object to Interrogatory #7 as being overbroad and not reasonably calculated to lead to any admissible testimony. Further, said Interrogatory violates the attorney client privilege. 8. State the names and home addresses and telephone numbers of all persons whom Defendants expect to call as expert witnesses to testify at trial. For each expert witness, state the subject matter on which each expert is expected to testify, the substance o£such testimony, and a summary of the grounds for each opinion, including any text material upon which the expert will rely, identifying all such texts, including name, author, edition, and page. ANSWER: The Defendants have not yet determined whether they will call an expert witness to testify at trial. 9. Identify (including name, address, occupation, and relationship to Defendants), all persons whom Defendants expect to call to testify at trial (other than expert witnesses) and what specific facts or inferences said testimony will be used to establish. ANSWER: A. Garry L. Bentzel. All matters relating to all of the allegations in the pleadings, all of the issues in this case and all other matters appropriate and incidental thereto. B. Ruby A. Bentzel - same as A. C. Attorney DJ Hart, 40 York Street, Hanover, PA 17331. Attorney Hart was the attorney that handled the sale of the business assets from Dutch Country Restaurant, Inc. to Sam Taylor Enterprises, Inc. and Mr. and Mrs. Spaila. We expect him to testify that Mr. and Mrs. Spalla and Sam Taylor Enterprises, Inc. were not agents of the corporate Defendant or the individual Defendants nor that Mr. and Mrs. Bentzel or the corporate Defendant retained any management control or ownership rights over the business. He will also testify that pursuant to the terms of the agreement the fictitious trade name was transferred to Sam Taylor Enterprises, Inc. and Mr. and Mrs. Spalla. D. Sam and Melissa Spalla, c/o Attorney Craig Shametzka, 29 N. Duke Street, York, PA 17401-1282. Testimony similar to C as well as testimony about payments made to Plaintiff. (Continued on last page) 10. Identify all exhibits that you intend to use at the trial of this matter. ANSWER: The Defendants have not yet identified all exhibits they may or intend to use at trial. In addition to the exhibits attached to the Plaintiff's complaints and the Installment Sales Agreement attached to the Defendants answer. It is anticipated that the Defendants are likely to introduce as exhibits at trial copies of the corporate Defendants financial records relating to invoices and invoices received fi'om the Plaintiff and payments made to the Plaintiff (all of which information is already in the possession of the Plaintiff), and possibly other as yet unidentified business records. 11. (c) (d) (e) ANSWER: If you intend to use any book, magazine, or other such writing at trial, state: (a) The name of the writing; (b) The author of the writing; The publisher of the writing; The date of publication of the writing; and The identity of the custodian of the waiting. The Defendants have not determined at this time whether they will use "any book, magazine, or other such writing at trial',. 12. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: None of the parties have submitted requests for admissions to any other parties. The Defendants may certainly use any admissions made by the Plaintiff in the pleadings. Otherwise, the Defendants have not yet determined whether they intend to use any admission of a party at trial. ANSWERS CONTINUED: E. Janice Farley, 6 Newberry Street, Hanover, PA 17331. Will testify with respect to the keeping of financial records and dealings with the Plaintiff during her employment by the corporate Defendant. F. Debra Wentz, 1222 Porters Road, Spring Grove, PA 17362. Will testify with respect to the financial/business records of the corporate Defendant and the handling of all invoices and payment thereof with respect to Plaintiff. Ms. Wentz will also verify various business records that will likely be introduced at trial. G. Karl Lehman, Rager, Lehman & Houck, P.C., 195 Stock Street, Suite 311, Hanover, PA 17331. Accountant and tax return preparer for the corporate Defendant. He will testify for the corporate Defendant. He will testify with respect to the Sales Agreement entered into between the corporate Defendant and Sam Taylor Enterprises, the issue of whether Sam Taylor Enterprises and/or Sam and Melissa Spalla were agents of the Defendants, and the relationship between Bentzel and the corporate Defendant. H. The Defendants reserve the right to determine and call other witnesses as the Defendants deem appropriate. IV. DOCUMENTS REQUESTS 1o See attached. 2. The Defendants object to request #2 on the basis that it is so overbroad as to constitute an unwarranted "fishing expedition" and designed solely to harass the Defendants. Request #2 is not reasonably calculated to identify or uncover any documents that would be admissible at trial. 3. The Defendants object to request #3 on the basis that it is unnecessarily overbroad and is not reasonably calculated to lead to admissible evidence. 4. The Defendants object to request #4 on the basis that it is so overbroad as to be a "fishing expedition", in bad faith, and designed solely to harass the Defendants. It is not reasonably calculated to lead to evidence that would be admissible at trial. Further, some of the documents requested are matters of public record. 5. See attached. 6. The Defendants object to request #6 on the basis that all such documentation is already in possession of the Plaintiff with the possible exception of cancelled checks. In the event, the Defendants would subsequently determine that their records of charges and payment are at variance with the Plaintiff's, that documentation will be provided on a timely basis. VERIFICATION I, Gany L. Bentzel, President of Corporation, hereby verify that the statements made in this Answer to Plaintiff's First Set of Interrogatories is correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.Section 4904 relating to unswom falsification to authorities. Garry L. J~tzel ~ Presidenf I, Garry L. Bentzel, Individual, hereby verify that the statements made in this Answer to Plaintiff's First Set of Interrogatories is correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.Section 4904 relating to unswom falsification to authorities. G~arry~L/~entzel~C I, Ruby A. Bentzel, Individual, hereby verify that the statements made in this Answer to Plaintiff's First Set of Interrogatories is correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.Section 4904 relating to unswom falsification to authorities. Ruby A. B~a~. el CERTIFICATE OF SERVICE The undersigned, being duly sworn, does hereby state that a true and correct copy of Answer to Interrogatories and Request for Production of Documents was served upon the following at the address indicated below, via regular, first-class, postage pre-paid mail, on Iqarch 19 _, 2003. Carl C. Risch, Esquire 10 East High Street Carlisle, PA 17013 Menges, Gent and McLaughlin, LLP Sup. Ct. I.D. #29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-1784 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Compel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES, GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 17331 Christopher .~R~ce Date January o~, 2004 JOHN GROSS & COMPANY, 1NC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, 1NC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED NOTICE TO PLEAD TO: GARRY L. BENTZEL AND RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants, and their attorney, DOUGLAS H. GENT, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. JOHN GROSS & COMPANY, 1NC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER AND NOW, comes Plaintiff, John Gross & Company, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files this Answer to New Matter, and in support thereof, moves as follows: 14. Admitted. 15. Denied. The Second Amended Complaint sets tbrth specific allegations enabling Plaintiff to pierce the corporate veil. 16. Admitted in part and denied in part. Admitted that the Second Amended Complaint does not contain a new cause of action. Denied that the Complaint does not contain a new theory of recovery. In fact, the Complaint specifically calls for the court to pieme the corporate veil of Defendant, Dutch Country Restaurant, Inc., providing Plaintiff with a new theory of recovery. 17. Denied. Specifically stated in the Complaint, Plaintiff's have alleged fraud by Defendants Garry L. and Ruby A. Bentzel. Defendants' cite to Sams v. Redevelopment Authority, 244 A.2d 779 (Pa. 1968) for the proposition that a party must allege that the corporate form of doing business is being used to perpetrate fraud or other similar reprehensible conduct. Plaintiff has alleged that Defendants Garry L. and Ruby A. Bentzel fraudulently and illegally used Defendant Dutch Country Restaurant to further their own personal interests. See Paragraph 25 of the Second Amended Complaint. A corporate veil may be pierced whenever one in control ora corporation, in our case Defendants Garry L. and Ruby A. Bentzel, uses that control or corporate assets to further their own personal interests. Watercolor Group, Inc. v. William H. Newbauer, Incorporated, 468 Pa. 103, 117 (1976). This is just one example of Plaintiff's allegations that would establish the requirements for pieming the corporate veil. Additional examples are found in Paragraph 24 of the Second Amended Complaint. Although not obvious to Defendants, the allegations within Paragraph 24 clearly set forth specific facts which enable Plaintiffto pieme the corporate veil as provided by Pennsylvania case law. PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER All of the information included in Plaintiff's Second Amended Complaint was not known or available to Plaintiffprior to the depositions by Plaintiffon November 17 and 18, 2003. The January 1, 2000 Assignment was not made available to Plaintiff even though requested on January 14, 2003, in Plaintiff's First Request for Production of Documents Directed to Defendants. The specific document request, number 4, stated "Copies of all Defendants' business records from January 1, 1996 until December 31,2001, concerning Dutch Country Restaurant, including, but not limited to,.., contracts ...."Without doubt, this Assigmnent is a business record executed within the above time line and is also considered a contract. The Assignment is between Defendant Dutch Country Restaurant and Defendants Garry L. and Ruby A. Bentzel. It specifically affects Plaintiffbecause the Bentzels illegally used the corporation to assign all rights, title, and interest in the Agreement between the Bentzels and a third party to themselves. Defendants objected to this request in order to avoid providing certain damaging documents, and therefore, did not provide the Assignment, a critical piece of information to pierce the corporate veil. Prior to the November 17 and 18, 2003 depositions, the beliefs and factual evidence Plaintiff did have were not sufficient to pierce the corporate veil and survive preliminary objections. Therefore, Plaintiff could not plead with specificity and particularity until after conducting the November depositions. Further, Defendants failed to respond to all of the discovery requests by not providing crucial answers to interrogatories and not producing what would have been damaging documents. Defendants falsely claim that they responded to all of Plaintiff's discovery. If they would have responded, the Assignment, for example, would have been made available to Plaintiff. 3. In order to clarify the reasoning behind amending the First Amended Complaint, Plaintiff stated in number 4 of the Petition to file Plaintiff's Second Amended Complaint that "Plaintiff was unable to state such averments with particularity until after conducting the depositions .... "This would infer that the basis to pieme the corporate veil was present before the depositions occurred, but it was Plaintiff's firm belief that it could not pieme the corporate veil and survive preliminary objections without additional information. The additional information provided through the November 17 and 18, 2003 depositions was enough to establish that the corporate veil could be pierced. 4. Plaintiff's Second Amended Complaint will not prejudice the Defendants because the statute of limitations has not run on Plaintiff's claim. WHEREFORE, Plaintiff requests this Honorable Court GRANT its Petition for Court Approval to file Plaintiff's Second Amended Complaint. Date: January .c~ [ ,2004 MARTSON, DEARDORFF, WILLIAMS & OTTO By Carl C. Risch, Esquire PA Attorney I.D. No. 75901 Christopher E. Rice, Esquire PA Attomey I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition for Court Approval was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES, GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 1733 ! Christopher E. Rice Date: January c~/ , 2004 JOHN GROSS & COMPANY, iNC.: iN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT and DUTCH COUNTRY RESTAURANT, INC., Defendants CIVIL ACTION - LAW 02-103 CIVIL JURY TRIAL OF TWELVE DEMANDED IN RE: PLAINTIFF'S PETITION FOR COURT APPROVAL TO FILE A SECOND AMENDED COMPLAINT ORDER AND NOW, this t a ff day of January, 2004, in consideration of the motion of the plaintiff to file a second amended complaint and the answer filed thereto, the Prothonotary is directed to list this case for argument at the regularly scheduled session of argument court to be held March 24, 2004. · /Carl C. Risch, Esquire For the Plaintiff t/Douglas H. Gent, Esquire For the Defendants :rlm BY THE COURT, Kevi~A. Hess, J. JOHN GROSS & COMPANY, INC.: Plaintiff : VS. GARRY L. BENTZEL and RUBY : A. BENTZEL, t/d/b/a DUTCH : COUNTRY RESTAURANT and : DUTCH COUNTRY : RESTAURANT, 1NC., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-103 CIVIL JURY TRIAL OF TWELVE DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY ORDER AND NOW, this ~ z ¢ day of January, 2004, a brief argument on the plaintiff's motion to compel discovery is set for Thursday, March 4, 2004, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ~1 C. Risch, Esquire For the Plaintiff K~. Hess~ · f?ouglas H. Gent, Esquire For the Defendants :rim JOHN GROSS & COMPANY, INC., Plaintiff GARRY L. BENTZEL and RUBY A. BENTZEL, t/d/b/a DUTCH COUNTRY RESTAURANT, and DUTCH COUNTRY RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-103 JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF DAUPHIN COUNTY: Please mark the above captioned case settled and discontinued. MARTSON DEARDORFF WILLIAMS & OTTO B¥~~ ~' ~ Christopher E. Rice, Esquire I. D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: February 27, 2004 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Car/isle, PA, first class mail, postage prepaid, addressed as follows: Douglas H. Gent, Esquire MENGES GENT & McLAUGHLIN, LLP 1157 Eichelberger Street Hanover, PA 17331 MARTSON DEARDORFF WILLIAMS & OTTO Christopher E. Rice Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 27, 2004