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Home My WebLink About01-2534 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action-(X~) Law ( ) Equity HILARY SUNDAY : BURGER KING CORPORATION 260 N. College Street : CT Corp. System Palmyra, PA 17078 : 1515 Market Street, Suite 1210 : Philadelphia, PA 19102 versus ; and TWOTON, INC. 9 West Willow Road P.O. Box 305 Willow Street, PA 17582 Plaintiff(s) & Defendant(s) Address(es) Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( Attorney (X) Sheriff Anthony J. Nestico. Esquire Nestico & Druby, L.L.P. Signature of Att ' 840 East Chocolate Avenne Hershey', PA 17033 Supreme Conrt ID No. 5886g 717-533-5406 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. rothono,ary ( ) Check here if reverse is issned for additional information SWEENEY & SHEEHAN By: GUY MERCOGLIANO Identification No. 39766 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 (215) 563-9811 Attorneys for: DEFENDANT, BURGER KING CORPORATION HILARY SUNDAY COURT OF COMMON PLEAS CUMBERLAND COUNTY BURGER KING CORPORATION AND TWOTON, INC. NO. 2001-2534 ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAl. TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, BURGER KING CORPORATION, in the above captioned matter. Defendant requests a JuD, at the time of trial in this matter. ' ~u~lercoglia~io DATE: SHERIFF's RETURN - OUT OF COUNTy ~ASE NO: 2001-02534 p COMMONWEALTH OF PENNSYLVANIA: COUNTy OF CUMBERLAND SUNDAy HILARy VS BURGE~RKING CORP 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: BURGER KING CORPORATION ~ CT CORP SYSTEM but was Unable to locate Th___em in his bailiwick. He therefore deputized the sheriff of PHILAD~ELP__MiA~_ County, Pennsylvania, to serve the within WRIT OF SUMMONs O---~---J~n~-~~~ice was attached i~p~~ return from PHILADEL__PHiA Docketing 18.00 Out of County Surcharge 9.00 Dep Philadelphia 116.00 .00 06/26/2001 NESTIcO & DRUBY Sworn and subscribed to before me this 9-~_ day of~ ~A.D. rothonotaz~;~7--------- SHERIFF'S RETURN - OUT OF COUNTy qASE NO: 2001-02534 p COMMONWEALTH OF PENNSYLVANIA: COUNTy OF CUMBERLAND SUNDAY HILARy VS BURGER KING CORP 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: TWOTON INC but was unable to locate T~hem in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within WRIT OF SUMMONS On June 26th ~ attached return from L~CASTER Sheriff,s Costs: D°cketin9 6.00 Surcharge 10.00 Dep Lancaster Co 33.95 ~,e/~ff of Cur~berland County 58.95 06/26/2001 ' NESTICO & DRUBY SWorn and subscribed to before me Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania ~ilar¥ Sunday ¥S. Burger King Corporation No. 2001-2534 civil Noxw, May 4, 2001 ,20 O O, I, SHERIFF OF CUM~E~.~ COL%4T¥, PA, do hereby deputize the Sheriff of Philadelphia Cotm~ to exectr[e tllis Wri% [his deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County., PA Affidavit of Service Now, ,20 , at o'clock __ M. served the within upon at by. handing to a cop}' of the orig/nal and made known to the corr~ts thereof. SO anb'wers, Sheriff of CounW, PA COSTS Swora and subscribed before SERVICE $ ne ti-ds__, day of ,20 MI-LEAGE AFF_rDAVIT $ · it q7 VERSUS : TERM, ~O ~ ~ Defendant SERVED AND ~ADE KNOWN TO ~OV~ ~ ~ ~Defendant Com~I b? handing = tree =nd attested cop~ of ~e wi~in Summons/Complaint, issued in ~e a~ve eapMoned matter on ~ ~ ~ I ~ ~OI , at I0:00 o'clock, ~ M., E.S.T.~. State of Pennsylvmia, to -~ ~ ~ ~ ~ ~ ~ O ~ O ~ O~ ~ (l} ~e aforesaid defendont, ~rson~lly; ~ (2) m adult member of ~e famil~ of said defendant, with whom said defendant resides, who stated that his/her relaEonship to said defendant is that of ' ~ (3) an adult person in charge of defender's residence; ~e said adult person having reused, upon re- quest, to give his/her name and relationship to said defendant; ~ (4} ~e manager/clerk of the place of lodging in which said defender resides; ~ (5} agent or ~rson for ~e ~me being in charge of de{end.nt's office or usual place of business. ~ (6) ~e ~nd o~iicer of said defendant Core.ny; So Answers, JOHN D, GREEN, Sheriff 12-38 (Re,,,. 12~7) -- ~o ,,,o,'r,., t~t,~_~ s'r_r.,~r. F'.o. ,ox ~'~4A ' "" -- ~ I t--., ur'n,,---- ~~'--'~-~-LANCASTER, PENNSYLVAN __ PROCE -~r~=.~-~= SERVICE IA 17608-3480 . (717) 299. SS RECEIPT 82oo .... -. -- °"~' '~*~IDAV~IT O__F R_~_~URN I _ r"~-"ASE TYPE - ~1, ~ .... Twotorl, INo. ' v''~'"^T~O~.ET¢.TOeESERvEo Surrlmorls ' A--~ ~.. s,.,~ .n. Z,. Co.., ~ -- · ..: t ,n~.o,, ,O,d, ~.o~. ~;~;" ~ o~ ,1~.... _. - .... " _ .... ~f'l~x~l~C~Jnt~f~his Writ ~ ~"a'~'e~return thereof accord ng CUNBERLA~D CO ~ICABL$~ua____ LAW OFFICE OF NESTI ~U~L~D CO SaZ~Z~ / Z SPACE BELOW FOR U E OF ~ERIFF ........ "~.'_- ' 5/30/0~ ..' ~")7~)1~:' ..~ ~.-~ ' .. ~~ .-~~ SWEENEY & SHEEHAN By: GUY MERCOGL/ANO Mentification No. 39766 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 (215) 563-9Sl 1 Attorneys for: DEFENDANT, BURGER KING CORPORATION HILARY SUNDAY . COURT OF COMMON PLEAS CUMBERLAND COUNTy : BURGER KING CORPORATION : AND TWO TON, INC. : : NO. 2001-2534 TO THE PROTHONOTARY: Kindly enter a rule upon PlaintiffHilary Sunday to file a complaint in the above matter within ~'enty (20) days from the date hereof. SWEENEY & SHEEHAN Guy Mereogliano DATE: 9-24-01 AND NOW, this.~ :lay of September, 2001, a rule is hereby granted upon PlaintiffHilary Sunday to file a complaint within twenty (20) days after service hereof, or suffer a judgrnent of non pros. HILARY SUNDAY : IN THE CO[JRT OF COMMON PLEAS 260 North College Street, : CUMBERLAND COUNTY, Palmyra, Pennsylvania 17078 : PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION - LAW : : NO. 2001-2534 RUSSOLI ENTERPRISES, INC. : 5002 Lenker Street, Aspen Building : Mechanicsburg, Pennsylvania 17055 : Defendant : JURY TRIAL DEMANDED : ~' : BURGER KING CORPORATION : CT Corp. System : 1515 Market St~'eet, Suite 1210 : Philadelphia, PA 19102 : Defendant : NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you mnst 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 yon defenses or objections to the claims set forth against you. You are warned that, if yon fail to do so, the case may proceed without you and a judg,nent may be entered against you by the Court without fi, rther notice for any money entered against you by the Court withont fi, rther notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property, or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PA LAWYER REFERRAL SERVICE PA Bar Association P.O. Box 186 Harrisburg, Pa 17108 800-932-7375 Aviso Le hah demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparesencia escrita o en persona o con un abogado y entregar a la cone en fonna escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dlnero o sus propiedades o otros de~chos impo~tantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCIONSE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASOCIACION DE LICENCIADOS DE FILADELFIA SERVICIO DE REFERENCIA E INFORMACION LEGAL PA LAWYER REFERRAL SERVICE PA Bar Association P.O. Box 186 Harrisburg, Pa 17108 800-932-7375 HILARY SUNDAY : COURT OF COMMON PLEAS 260 North College Street, : CUMBERLAND COUNTY, Palmyra, Pennsylvania 17078 : PENNSYLVANIA Plaintiff : : v. : CML ACTION - LAW : : NO. 2001-2534 RUSSOLI ENTERPRISES, INC. : 5002 Lenker Street, : Aspen BulM~ng : Mechanicsburg, : Pennsylvania 17055 : Defendant : d'URY TRIAL DEMANDED : · ~s : : BURGER KING CORPORATION : CT Corp. System : 1515 Market Street, Suite 1210 : Philadelphia, PA 19102 : Defendant : COMPLAINT AND NOW comes the Plaintiff, HILARY SUNDAY, by and though her attorneys, NESTICO & DRUBY, L.L.P., and does respectfully represent the following: 1. The Plaintiff, HILARY SUNDAY, is an adult individual who currently resides at 260 North College Street, Palmyra, Lebanon County, Pennsylvania 17078. 2. The Defendant, RUSSOLI ENTERPRISES, INC, is a Pennsylvania corporation with a business address of 5002 Lenker Street, Aspen Building, Mechanicsburg, Cumberland County, Pennsylvania 17055· 3. The Defendant, BURGER KING CORPORATION, is a Pennsylvania corporation with a registered address of 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. 4. It is believed and averred that the Defendant, RUSSOLI ENTERPRISES, INC., owns and operates a Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 5. It is believed and averred that the Defendant, BURGER KING CORPORATION, is the Franchisor of the Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 6. The facts hereinafter set forth took place on November 2, 2000, at the Burger King restaurant located at 950 East High Street, Carlisle, Cumberland County, Pennsylvania 17013. 7. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, stopped at the Burger King restaurant to eat breakfast. She ordered a sausage sandwich, hash brown and a soda. 8. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, bit into something metallic in the sausage sandwich. 9. After looking at the sandwich, she saw a piece of metal hanging from the sandwich. 10. Plaintiff inadvertently ingested a piece of metal that was contained in the breakfast sandwich, prior to discovering the metal. 1 I. As the proximate result of the negligence of Defendants, Plaintiff, HILARY SUNDAY, suffered serious injuries, including but not limited to the following: (a} Abdominal pain; lb) Constipation; (c) Epigastic pain; (d} Nausea; (e) Shock to nerves and nervous system; (f) Emotional distress; and (g} Pain and suffering. 12. As a result of the negligence of Defendants, Plaintiff required significant medical treatment, including but not limited to: (a) Several emergency room examinations; (b) An Esophagogastroduodenoscopy; (c) Six (6) Enemas; and (d) Multiple x-rays. COUNT I-NEGLIGF, NCR HILARY SUNDAY V. RU$SOLI ENTERPRISES, INC. 13. Thc foregoing paragraphs of this Complaint arc incorporated herein by reference and made a part hereof as if set forth in full. 14. Thc aforesaid incident was a direct and proximate result of t_he negligence, carelessness and recklessness of the Defendant, RUSSOLI ENTERPRISES, INC., in the following, particularly: Iai In buying supplies or food that were contaminated with metal; {b} In not thoroughly inspecting the supplies and food that they offered for sale to the public; {c} In serving a breakfast sandwich contaminated with metal; {d} In not w&rning the Plaintiff, HII~ARY SUNDAY, that the breakfast sandwich she ordered was contaminated with metal; {e} In hiring employees who are not competent enough to notice that there was metal in the breakfast sandwich; {0 In not sufficiently training their employees to properly prep&re, cook and/or inspect the food served so that there would be no metal in the breakfast sandwich; {g) In not sufficiently supervising their employees and allowing them to serve a breakfast sandwich that contained metal; {h) In allowing their employees to serve a breakfast sandwich that contained metal; {i) In failing to follow Heath Department guidelines; 0} In falling to maintain a clean work environment; and (k) In not having a policy or procedure, or in failing to follow a policy or procedure, for inspections that could have prevented the food from being contaminated. 15. As a direct and proximate result of her aforesaid injuries, Plaintiff, HILARY SUNDAY, has undergone and in the future will undergo great pain and suffering, embarrassment and humiliation for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY has and/or may in the future incur expenses for lost wages, medical treatment and rehabilitation for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY, has sustained a diminution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against the Defendant in an amount in excess of the limit set forth for mandatory arbitration. COUNT II- NEGLIGENCE HILARY SUNDAY V. BURGER KING CORPORATION 18. The forgoing numbered paragraphs are incorporated herein by reference. 19. The aforesaid incident was a direct and proximate result of the negligence of Defendant, BURGER KING CORPORATION, in the following, particularly: In franchising their restaurant to a corporation that operated their business in a careless, reckless and negligent manner, as set forth elsewhere in this complaint; [bi In franchising their restaurant to a corporation that bought supplies that were contaminated with metal; (c) In franchising their restaurant to a corporation that did not thoroughly inspect the supplies that they bought; (dl In franchising their restaurant to a corporation that did not warn the Plaintiff, HILARY SUNDAY, that the breakfast sandwich she ordered was contaminated; (e} In franchising their restaurant to a corporation that hired employees that are not competent enough to notice that there was metal in the breakfast sandwich; In franchising their restaurant to a corporation that did not sufficiently train their employees to know that there should not be metal in the breakfast sandwich; (g) In franchising their restaurant to a corporation that did not sufficiently supervise their employees and allow them to serve a breakfast sandwich that contained metal; (h) In franchising their restaurant to a corporation that allowed their employees to serve a breakfast sandwich that contained metal; (i) In franchising their restaurant to a corporation that did not maint~n a clean environment in which to prepare and serve food to the public; In franchising their restaurant to a corporation that did not have a policy or procedure, or one that failed to follow a policy or procedure, for inspections that could have prevented the food from being contaminated; (k) In franchising their restaurant to a corporation that did not comply with applicable health regulations; (1) In franchising their restaurant to a corporation that did not have inspections that could have prevented the food from being contaminated. 20. As a direct and proximate result of her aforesaid injuries, Plaintiff, HILARY SUNDAY, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 21. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY has and/or may in the future incur expenses for lost wages, medical treatment and rehabilitation for which damages are claimed. 22. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY, has sustained a diminution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against Defendant in an amount that exceeds the limit set forth in Cumberland County for mandatory arbitration. Respectfully Submitted, NESTICO & DRUBY, L.L.P. Anthony J~est~ico, Esquire Attorney YD. No. 58868 840 East Chocolate Avenue Hershey, Pennsylvania 17033 (717) 533-5406 Date: /~ ~ [ .~' DJ (717) 533-5717 CERTIFICATE OF SERVICE I, Larissa D. Zeavf~ss, a paralegal at the law firm of NesUco & Druby, L.L.P., hereby certify that on the 15L~ day of October, 2001, a cow of the foregoing &~cument was sent v~a First Class U.S. Mail, postage paid, to the following: Russoli Enterprises, Inc. 5002 Lenker Street, Aspen Building Mechanicsburg, Pennsylvania 17055 Burger King Corporation CT Corp. System 1515 Market Street, Suite 1210 Philadelphia, Pennsylvania 19102 Larissa D. Zearfos r~ ,,%1 ~ ,...~- CASE NO: 2001-02534 p SHERIFF.s RETURN _ REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTy OF CUMBERLAND VS ~, Sheriff or Deputy Sheriff of Cumber/and County, Pennsylvania' Says, who being duly _ the Within COMPLAINT & NOTI~ SWOrn according to /aw, ~ ENTERPRIsEs i~ ~ __ -'~ was Served Upon . ~, at 1115:00 ~T~n~ t at 5002 LENKER STREE~ aOURs, on the 22_~__nd day of Octobe- ne -- ~ .... ---~v_~_~_~_, 2001 ..... v~u, PA 17055 a true and a tested Copy of and at the same time directing H_~/~s/s attention to the COntents thereof. S~eriff's Co~,_ ~n9-~sts: 18.00 So Answers ..--~-~ Affidavit 7.80 Surcharge .00 10.00 ~ .m. Thomas Kline- ~ ~b.80 10/23/2001 Sworn and Subscribed to before NEST/co & DRUBy me By:~ this ~ day of ~A.D. ~O$-A \L IA B~R GH'CORR~83184~P. YM\ I 4182~O000 ~. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, Plaintiff : : : Civil Action - Law V. : · No. 2001~2534 : RUSSOLI ENTERPRISES, INC. and BURGER J'ury Trial Demanded KING, CORPORATION, : Defendants : ; E..~NTRY OF APPEARANCE TO THE PROTHONTARY: -- Kindly enter the appearance of Robert G. Hanna, Jr., Esquire on behalf of the following Defendants: Russoli Enterprises, Inc. and Burger King Corporatiou in the above-captioned Case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, 4200 C .m .iAg Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants IN THE COURT OF (~OMI~ON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law .' v. : No. 2001-2534 RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : Certificate of Servic- I hereby certify that I have served upon all persons listed below a true and correct copy of the foregoing document via U.S. mail, postage prepaid this [{qL day of }~)~}T~' , 2001. Anthony J. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, Pa 17033 CHAEL L. MINNICH X05-A\LIABXRGH~C'ORRXS.1186XRYM\I4182L50000 / .~. ~O~. ' Identification No. 39766 Nineteenth Floor 1515 M~ket S~eet ~'~~',~ .... PhilMelphia, Pe~sylvania 19102-1983 Attome~ for: Defend~t, (2~S) Burg~ ~ng Co~oration HILly S~AY : CO~T OF COMMON PLEAS : C~BE~A~ CO~TY V. RUSSOLI ENTE~SES, ~C. and : B~GER K~G CO'OPTION : NO. 2001-2534 ANSWER, NEW MATTER AND NEW MATTER CROSSCLAIM OF DEFENDANT, BURGER KING CORPORATION, TO PLAINTIFF'S AMENDED COMPLAIN Defendant Burger King Corporation by way of Answer to Plaintiff's Complaint hereby says: 1. At, er reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at thc time of trial. 2. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no response is required. 3. Admitted to the extent that Defendant, Burger King Corporation, with a registered address of 1515 Market Street. 4. The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no response is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 5. Admitted only that Answering Defendant has a franchise agreement with reference to the restaurant at the location noted.. 6. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 7. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 8. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 9. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 10. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 1 I. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the avem~ents of this paragraph and strict proof is demanded at the time of trial. 12. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at the time of trial. 13. Answering Defendant incorporates by reference its responses to paragraphs 1 through 12, above, as if fully set forth herein at length. 14.(a)-(k) The averments contained in this paragraph relate to a Defendant other than Answering Defendant and no response is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 15. This averment constitutes a conclusion of law requiring no answer. 16. This averment constitutes a conclusion of law requiring no answer. 17. This averment constitutes a conclusion of law requiring no answer. WHEREFORE, Answering Defendant demands judgment in its favor and against the Plaintiffdismissing Count I of Plaintiff's Complaint together with costs of suit, interests and reasonable attorneys' fees. 18. Answering Defendant incorporates by reference its responses to Paragraphs 1 through 17, above, as if fully set forth herein at length. 19.(a)-(l) These averments constitute conclusions of law requiring no response. By way of further answer, the averments of this paragraph are denied. 20. These averments constitute conclusions of law requiring no response. By way of further answer, the averments of this paragraph are denied. 21. These avenrlents constitute conclusions of law requiring no response. By way of further answer, the averments of this paragraph are denied. 22. These averments constitute conclusions of law requiring no response. By way of further answer, the averments of this paragraph are denied. WHEREFORE, Answering Defendant demands judgment in its favor and against the Plaintiffdismissing Count II of PlaintitT's Complaint together with costs of suit, interests and reasonable attorneys' fees. HILLARY SUNDAY VL N N . 23. Answering Defendant incorporates by reference its response to paragraphs 1 through 22, above, as if fully set forth herein at length. 24. The averments of this paragraph constitute conclusions of law to which no reply is r~luired. 25. (a)-(d) The averments of this paragraph constitute conclusions of law to which no reply is required. 26. With reference to Answering Defendant, the averments of this paragraph including all subsections are denied. By way of further answer, they constitute conclusions of /aw to which no reply is ~quired. Defendant incorporates by reference paragraphs 1 through 26 above, as if set forth fully herein at length. 27. The Plaintiff's injuries, if any, were caused by the negligence and/or liability producing acts or omissions of parties or other entities over whom the Answering Defendant neither has control nor the ability to control at all times relevant to this lawsuit. 28 Plaintiff assumed the risk of her own conduct. 29 Plaintiff's claims may be barred by the applicable Statute of Limitations if suit was not filed in accordance therewith. 30. This Court lacks subject matterjurisdictiun over the within action. 31. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 32. Plaintiff failed to mitigate damages, if any. 33. Any damages or injuries which may have been sustained by the Plaintiffor caused through the sole negligence of the co-defendant herein. 34. Any damages or injuries which may have been sustained by the Plaintiffwere the result of an unavoidable accident insofar as the Answering Defendant is concerned. 35. Plaintiff's c/aim based upon breach of warranty is barred and/or subject to the Pennsylvania Commercial Code, including all requirements with reference to notice. NEW MATTER PURSUANT TO PA. R,C.P. 2252(d) IN THE NATURE OF 36. For purposes of asserting a Crossclaim against Defendant Russoli Enterprises, /nc., Defendant Burger King Corporation incorporate by reference herein, all material allegations of fact and law directed against Defendant Burger King Corporation which are contained in Plaintiff's Complaint, without adopting same. If the allegations of Plaintiff's Complaint are shown to be true, any negligence or liability on the part of Defendant Burger King Corporation being expressly denied, then Defendant Russoli Enterprises, Inc. is primarily liable therefor, and is liable over to Defendant Burger King Corporation by way of indemnity for any amounts which the said Defendant might be required to pay Plaintiff; or, in the alternative, Defendant Russoli Enterprises, Inc. is liable to Defendant Burger King Corporation for contribution. 37. There exists between Defendant Burger King Corporation and Defendant Russoli Enterprises, Inc. a certain Franchise Agreement which requires the franchisee not only defend and indemni~ Burger King Corporation under circumstances such as those giving rise to this suit, but also obligates the franchisee to purchase comprehensive general liability insurance naming Burger King Corporation as an additional insured on the policy. According to the franchise contract, Defendant Burger King Corporation is entitled to defense and indemnity in this manet and coverage under the applicable policy pursuant to the Franchise Agreement. A copy of the Franchise Agreement is attached hereto as Exhibit "A." 38. The Franchise Agreement reads in relevant part: 13. INSURANCE: INDEMNIFICATION A. FRANCHISEE agrees to carry at his expense during the Term of this Agreement Comprehensive General Liability insurance, including Products Liability and Broad Form Contractual Liability, in an amount of not less than ONE MILLION ($ 1,000,000.00) dollars per occurrence for bodily injury and FIVE HUNDRED THOUSAND ($500,000.00) dollars per occurrence for property damage, or in such increased amounts as BKC may reasonably request from time to time during the Term of this Agreement. Each policy will name BKC and its subsidiaries, its affiliated and parent companies as additional insured, will provide that the policy cannot be cancelled without thirty (30) days prior written notice to BKC, will insure against the liability of BKC for both its and FRANCHISEE'S acts or omissions, and will insure the contractual liability of FRANCHISEE under Paragraph 13.C. Additionally, FRANCHISEE agrees to carry, at FRANCHISEE'S expense, umbrella coverage in an amount of ONE MILLION ($1,000,00000.00) DOLLARS over the basic Comprehensive General Liability insurance per restaurant except that if FRANCHISEE owns more than ten (10) Burger King Restaurants, the umbrella coverage applicable to all such restaurants need not exceed TEN MILLION ($10,000,000) DOLLARS. The insurance afforded by the policy or policies respecting liability shall not be limited in any way by reason of any insurance which may be maintained by BICC. Prior to the Commencement Date, FRANCHISEE shall furnish to BKC Certificates of Insurance reflecting that the insurance coverage is in effect pursuant to the terms of this Agreement. All policies shall be renewed, and a renewal Certificate of Insurance mailed to BI(C in Miami, Florida, or at such other location as may be specified by BKC prior to the expiration date of the policies. This obligation of FRANCHISEE to maintain insurance is separate and distinct from its obligation to indemnify BKC under the provisions of Paragraph 13C and shall not be affected by reason of the negligence of or a claim ofnegligance against BKC. B. FRANCHISEE agrees to secure and pay premiums on a Worker's Compensation policy covering himself and all his employees, as required by law. C. FRANCHISEE is responsible for all losses or damages and contractual liabilities to third persons arising out of or in connection with possession, ownership or operation of the Franchised Restaurant, and for all claims or demands for damages to property or for injury, illness or death of persons directly or indirectly resulting therefrom. FRANCHISEE agrees to defend, indemnify and save BKC and its subsidiaries, its affiliated and parent companies harmless of, from and with respect to any such claims, demands, losses, obligations, costs, expenses, liabilities, debts or damages. This obligation to indemnify and defend BKC shall apply even in the event of the negligence of or claim of negligence against BI(C and regardless of whether the negligence or claim of negligence against BKC is as a result of the acts or omissions of BKC or that of the FRANCHISEE. However, the obligation of the FRANCHISEE to indemnify BKC for its own .negligence shall be limited to an amount equal to the amount of insurance set forth in Paragraph 13.A. BKC's fight to indemnity under this Agreement shall arise and be valid notwithstanding that joint or concurrent liability may be imposed on BlOC by statute, ordinance, regulation or other law. The indemnification of BKC by FRANCHISEE for FRANCHISEE'S own negligence, acts or omissions, shall not be limited by the amount of insurance required under Paragraph 13.A. This indemnity obligation shall include, but not be limited to, claims related to the employment of FRANCHISEE'S employees. This obligation of FRANCHISEE to indenmify and defend BKC is separate and distinct from its obligation to maintain insurance under the provisions of Paragraph 13.A. BKC shall notify FRANCHISEE ofany claims, and FRANCHISEE shall be given the opportunity to assume the defense of the matter; however, BKC shall have the right to participate in the defense of any claim or action against it which is assumed by FRANCHISEE, at BKC's own cost and expense. If appropriate, and FRANCHISEE shall pay to BKC al/costs, including attorneys' fees, incurred by BKC in effeeting such defense, in addition to any sum which BKC may pay by reason of anY settlement or judgment against BKC. No settlement of any claim against excess ofthe BKC shall be made bY FRANCHISEE which is in amount of insurance referred to in Paragraph 13.A. or which would subject BKC to liability in any amount not covered by such insurance without the prior written consent of BKc. Any .final judicial determination of the negligence of BKC in an amount m excess ofthe policy limits of insurance required under Paragraph 13.A. shall be the responsibility of BKc. 39. Burger King Corporation's request for a defense and indemnification pursuant to the terms of the franchise agreement has been declined. 40. Burger King Corporation is not being Provided a defense nor indenmifieation nor otherwise acknowledged as an insured on the policy of insurance issued to the franchisee, upon which Burger King Corporation is supposed to have been named as an additional insured. 41. Answering Defendant incorporates by reference paragraphs I through 40 above, as if set forth fully herein at length. 42. The franchisee's refusal to defend or indemni~z Burger King Corporation under the terms of the Franchise Agreement constitutes a breach of contract as a result of which Burger King Corporation has and will continue to suffer financial loss including, but not limited to, attorneys, fees, costs and any liability for judgments, verdicts or settlements in this matter. WHEREFORE, Defendant Burger King Corporation demands judgment in its favor and against Defendant, Russoli Enterprises, Inc., for all costs, fees, damages, verdicts or settlements and any other liabilities or losses arising out of this matter. 43. Answering Defendant incorporates by reference paragraphs I through 42 above, as if set forth fully herein at length. 44. The fi'anchisee's failure to procure proper and adequate insurance listing Burger King Corporation as an additional insured constitutes a breach of the Franchise Agreement which has, and will continue to cause financial losses to Burger King Corporation including, but not limited to, attorneys' fees, costs, and any liaibility for judgments, verdicts or settlements arising out of this matter. WHEREFORE, Defendant Burger King Corporation demands judgment in its favor and against Defendant, Russoli Enterprises, Inc., for all costs, fees, damages, verdicts or settlements and any other liabilities or losses arising out of this matter. SWEENEY & SHEEHAN By: ~ Attorney for Defendant, Burger King Corporation GUY MERCOGLIANO deposes and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing ANSWER, NEW MATTER AND NEW MATTER CROSSCLAIM OF DEFENDANT, BURGER KING CORPOP,.4 TION. TO PLAINTIFF'S AMENDED COMPLAINT are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C. S. Section 4904 relating to unsworn falsification to authorities. GUY MERCOGLIANO DATE: SWEENEY & SHEEHAN By: Guy Mercogliano Identification No. 39766 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for: Defendant, (215) 563-9811 Burger King Corporation HILARY SUNDAY : COURT OF COMMON PLEAS : CUMBERLAND COUNTY ; V. ; ; RUSSOLI ENTERPRISES, INC. and : BURGER KING CORPORATION : NO. 2001-2534 CERTIFICATION OF SERVICE I hereby certify that service of the foregoing ANSWER, NEll"MATTER AND NEW MATTER CROSSCLAIM OF DEFENDANT, BURGER KING CORPOR,4TION, TO PLAINTIFF'S AMENDED COMPL.41NT was made upon all interested counsel in the above matter by thc United States First Class Mail on November 29, 2001. INTERESTED COUNSEL] Anthony $. Nestico, Esquire Nestico & Druby, L.L.P. 840 East Chocolate Avenue Hershey, PA 17033 SWEENEY & SHEEHAN By:. ~ Guy Mercogliano Attorney for Defendant, Burger King Corporation Exhibit A CONDmONAL CONSENT TO ASSIGNMENT OF FRANCHISE AGREEI~TENTS AND LEASES FILM & FILE:BK#? BURGER KINe CORPORATION ( BKC ), the ~ndividu~al, individuals, en~ity, and/or entities whose names and addresses are set forth on Schedule l(individually, the "Assisnor" and collectively, the "Assignors"), the individual, individuals, entity, and/or entities whose names and addresses are set forth on ~ (individually, a 'Guarantor" and collectively, the "Guarantors"), the individual, individuals, entity, and/or entities whose names and addresses are set forth on ~ (individually, an "Assignee' and collectively, the 'Assignees"), and the individual, individuals, entity, and/or entities, if any, whose names and addresses are set forth on Sch~ule 4 (individually, an "Owner" and collectively, the "Owners"). INTRODUCTION A. Each Guarantor owns an equity interest in Assignors. B. Each Assignor is a party to certain franchise aipeements (the 'Franchise .a~reements') with BKC relatinS to the operation of Burger King restaurants (the "Restaurants'). A list of the Franchise Agreements and Restaurants is set forth on Sch~ule 5. C. Each Assignor may also be a party to certain lease agreements (the "Leases*) with BKC whereby Assignors lease the premises upon which certain of the Restaurants are located. A list of the Leases, if any, is set forth on Sch~ule 5. D. Guarantors have jointly and severally guaranteed ail of the obligations of Assignors to BKC. E. Each Owner owns an equity interest in Assignees. F. Assignors and Guarantors have requested that BKC consent to an assil~nment of the Franchise Asreaments and Leases to Assignees. COVENANTS AND AGREEMENTS In consideration of the foresoins, the parties agree as follows: 1. A~-qionm~nt and Assumption. Each Assignor assigns all of its right, title and interest in the Franchise Alp-eements and Leases to Assignees, and Assignees assume all of Assignors' duties and obligntions under those ngreamants. BKC consents to this aasignme~R and assumption on the terms and conditions set forth in this Asreemant. L(}K:sga 2/09/95 BK ~080 2. General Release of BKC. Each of the Owners, Guarantors, Assignors and Assignees jointly and for themselves, their successors, assigns, heirs, personal representatives and affiliates (collectively, the "Releasing Parties") unconditionally and absolutely releases and forever discharges BKC, its successors, predecessors, counsel, insurers, assigns, officers, directors, employees, parent company, affiliates, subsidiaries and agents, past or present (collectively, the "Released Parties") from and against any and all claims, actions, causes of action, demands, damages, costs, suits, debts, covenants, controversies, and any other liabilities, whether known or unknown, liquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal or equitable, which the Releasing Parties may have that relate to or arise out of this Agreement, the Franchise Agreements, Leases, the operation of the Restaurants, or any other matter, cause or circumstance whatsoever from the beginning of the world through the date of this Agreement, including without limitation any claim that BKC has made representations regarding any tight to exclusive territory or trading areas, the economic viability or profitability of the Restaurants or current or potential sales at the Restaurants. 3. Unlimited Guaranty by Owner~. Each Owner agrees to jointly, severally, irrevocably and unconditionally guarantee the payment and performance of ali debts, obligations and liabilities of the Assignees to BKC arising pursuant to the Franchise Agreements, Leases or any other agreement with BKC relating directly or indirectly to the Restaurants (the "BKC Agreements"), together with all costs of collection, compromise or enforcement, including reasonable attorneys' fees, incurred with respect to any such debts, obligations or liabilities or with respect to this or any other guaranty thereof or any proceeding under the United States Bankruptcy Code or any other proceeding or action affecting the tights of the Assignee's creditors generally (all of the foregoing being referred to collectively as the "Obligations"). This guaranty by the Owners shall continue in full force end effect until Assignees have fully paid and performed all of the Obligations. 4. Partial Release of Assienors and Guarnrr:.~.~ Nothing contained in this Agreement shall (a) release Assignors from continued liability under the Leases or (b) release any Assignor or any Guarantor from its liability for damages for any breach of the Franchise Agreements or Leases ptior to the date of this Agreement. Except as provided below, Assignors and Guarantors are released from ali other liability to BKC under the Franchise Agreements, unless an Assignor shall remain a franchisee under the Franchise Agreements, in which case such Assignor. shall also be liable to BKC for any breach of the Franchise Agreements after the date of this Agreement. 5. Limited Guaranty_ of Assi~nors and Guarant~r~. Each Guarantor and Assignor agrees to jointly, severally, irrevocably and unconditionally guaranty the payment and performance of the Obligations by Assignees. Provided, however, that the guaranty by each Guarantor and Assignor of the obligations of Assignees under the Franchise Agreements only, and not their guaranty of the Obligations of Assignees under the Leases or any of the other BKC Agreements, shall terminate upon the later of (a)one year from the date of this Agreement or (b) the date of payment of'the final installment ofany purchase money debt owed by Assignees to Assignors, if, and only if, Assignees pay when due all financial LGK:ssn 2/09/95 BK #2080 2 obligations to BKC under the BKC Agreements between the date of this Agreement and such termination date, unless an Assignor or Guarantor is also an Owner, in which case this Paragraph shall be inapplicable and Paragraph 3 of this Agreement shall control. 6. General Tezms and Conditions of Guaranfi~,~ In connection with the gnarenties set forth above in Paragraphs 3 and 5 (collectively the "Guaranties"), the Owners, the Guarantors, and the Assignors hereby agree as follows: (a) The Guaranties shall not be impaired by any modification, supplement, renewal, extension or amendment of the BKC Agreements or any of the Obligations, nor by any modification, release or other alteration of any of the Obligations hereby gnarenteed, nor by any agreements or arrangements whatever with Assignees or any one else, nor by BKC's and any Assignee's execution of new franchise agreements which shall supersede and replace any end all of the Franchise Agreements; (b) The liability of each guarantor hereunder is primary, direct and unconditional and may be enforced without requiring BKC first to resort to any other right, remedy or security; (c) No guarantor hereunder shall have any right of subrogation, reimbursement or indemnity whatsoever, unless and until the Obligations are paid or performed in fllll; (d) If any guarantor hereunder should at any time die, become incapacitated, become insolvent or make a composition, trust mortgage or general assignment for the benefit of creditors, or if a proceeding under the United States Bankruptcy Code or any similar law affecting the rights of creditors generally shall be filed or commenced by, against or in respect of any guarantor hereunder, any end all obligation of that guarantor shall, at BKC's option, immediately become due end payable without notice; (e) If any payment or transfer to BKC which has been credited against any Obligation, is voided or rescinded or required to be returned by BKC, whether or not in connection with any event or proceeding described in Section 6(d), the Guaranties shall continue in affect or be reinstated as though such payment, transfer or recove~t had not been made; (f) Except es otherwise provided in this Agreement, ~oh of the Guaranties shall be construed as an absolute, unconditional, continuing and unlimited obligation of the each guarantor hereunder without regard to the regularity, validity or enforceability of any of the Obligations, and without resard to whether any Obligation is limited, modified, voided, released or discharged in any proceeding under the United States Bankruptcy Code or any similar law affecting the fights of creditors generally; (g) Any termination of the Guaranties shall be applicable only to Obligations accruing after termination or having their inception at~er the effective date of such termination and shall not affect Obligations having their inception prior to such date; l:k~rms~assnnm LGK:sga 2/09/95 BK #2080 3 (h) The death or incapacity of any guarantor hereunder shall not result in the termination of the Guaranties; (i) Any and all present and future debts and obligations of the Assignee to any guarantor hereunder are hereby waived and postponed in favor of and subordinated to the full payment and performance of the Obligations; (,j) Each guarantor hereunder waives to the greatest extent permitted by law: notice of acceptance hereo~, presentment and protest of any instrument, and notice thereof; notice of default or intent to accelerate; notice of foreclosure; notice of any modification, release or other alteration of any of the Obligations or of any security therefor and ali other notices to which any guarantor hereunder might otherwise be entitled; and (k) Each guarantor hereunder waives to the greatest extent permitted by law: any defense arising by virtue of the lack of authority, death or disability of such guarantor or any Assignee; or any defense based upon an election of remedies by BKC which destroys or otherwise impairs the subrogation rights of such guarantor or the right of such guarantor to proceed against the Assignees for reimbursement, or both. 7. ~ll~L,~.~[. The person set forth on Schedule 6 hereto is designated as the Assignees' "Operating Partner' under each of the Franchise Agreements. 8. No Default. Each Assignor represents and warrants that the Assignor is not in default under the Franchise Agreements, Leases, or any of the BKC Agreements. 9. Compliance with Guidelines. Assignors, Assignees, Guarantors and Owners each represent and warrant that they have complied with the Guidelines for Preparation of Corporate Governing Instruments or Guidelines for Approval of Franchisee Ownership Distribution Plans, if applicable. 10. Equity_ Ownershio and Transt'er Restrictions. (a) Assignees and Owners each hereby represent and warrant that the equity ownership of the Assignees is as set forth on Sch~ule 7 and that they shall each comply with all of the provisions of the Franchise Agreements regarding restrictions on the transfer, pledge and encumbrance of equity interests in Assignees. (b) Any breach of the provisions of this Paragraph 10 shall constitute a material default raider each of the BI~C Agreements. 11. Proprietary Information. Etc. Assignees, Assignors, Owners, and Guarantors each represent and warrant that they shall comply and continue to comply with all of the provisions of the Franchise Agreements regarding the confidentiality of all proprietary property and information the restriction on the use of such information, and the limitation I:~o~r~mst L(3Ii:sga 2/09/9:5 BIi #2080 4 on competition with BKC. Any breach by any party of its obligations under this Paragraph 11 shall also constitute a material default under each of the BKC Agreements. 12. Accounts Receivable/Transfer F~ Assignees, Assignors, Guarantors, and Owners each acknowledge and agree that the transfer fee and any New Franchisee Training Fee set forth in the Franchise Agreements and all currently due or past due charges payable to BKC must be paid in full upon execution of this Agreement, and that: (a) There are certain charges, including royalties, advertising contributions, rent, real estate taxes and other charges under the Franchise Agreements and Leases which have accrued, been assessed or otherwise become liabilities under the BKC Agreements, but are not yet due; Co) Each Assignee, Assignor, Guarantor, and Owner is jointly and severally liable for such charges; (c) BKC currently expects that Assignee shall pay such charges when due; (d) Any proration, escrow or prepayment of such charges is the Assignees' sole responsibility; (e) The failure to so prorate, escrow or prepay shall not excuse Assignees from paying such char~es when due; and (f) BKC has made no representation or warranty that such charges do not exist or exist in a speeiiic amount. 13. Fran his A Ii i . Assignees end Owners each represent and warrant that the representations set forth in their applications to BKC for approval as a BKC franchisee and for approval of the transaction referenced in Paragraph F above are true and correct as of the dnte hereof. (a) Choice of Law: lurisdiction and Ve,~,,-. This Asreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties hereto acknowledge end agree that the United States District Court for the Southern District of Florida, or if such court lacks jurisdiction, the 1 lth .Iudicial Court (or its successor) in and for Dade County, Florida, shall be the venue and exclusive proper forum in which to adjudicate any case or controversy arisin& either direetly or indirectly, under or in connection with this Agreement, the Franchise Agreements, Leases, related documentation, or any other asreement with BKC, and the parties further agree that, in the event of litigation arising out of or in connection with this A~reement, related documentation or any other agreement between BKC and Assignor, Assignee, Owners, I:~fonns~,.mmst LGll:s~n 2/09/95 BK #2080 5 end/or Guarantors in these courts, they will not contest or challenge the jurisdiction or venue of these courts. (b) ~. This Agrenment and the other documents being executed end delivered pursuant hereto constitute the fi~ll end entire agreement end understanding between the parties hereto with respect to the subject matter hereof. No amendment hereto shall be effective unless it is in writing and signed by all of the parties hereto. (c) ~. Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, successors, assigns, executors, personal representatives and administrators. (d) a]:i.~dia~. The headings of the provisions of this Agreement are for convenience or reference only end are not to be considered in construing this Agreement. (e) Severability. If one or more of the provisions contained in this Agreement or in any document contemplated hereby, or eny application thereof, shall be invalid, illegal or unenforceable, in any respect under the laws of eny jurisdiction, the validity, legality end enforceability of the remaining provisions contained herein end therein, and eny application thereof, shall not in any way be affected or impaired thereby or under the laws ofeny other jurisdiction. (f) ~. This Agreement incorporates all prior discussions and negotiations amenS the parties hereto end constitutes the entire agreement among the parties hereto with respect to the subject matter of this Agreement. There are no other agreements ofeny kind whether oral or in writing between BKC end eny other party, with respect to the matters covered herein. (g) ~. The parties each agree that the rights end obligations of BKC under this Agreement end eny related agreement shall be frenly assignable by BKC without the consent of any other party. The other parties may not assign their rights or obligations under said agreements. I:kformskassnmst LOK:sga 2/09/95 BK#2080 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as a document under seal dated as ofthe day and year first written above. BURGER KING CORPORATION ^ Franchise As~¢iate OWNERS: Robert {2. Rusmli GUAR.~qTOR~: ASSIGNEES: Trebor Square, Ltd. Secretary ASSIGNORS: Rob~r~ I. Rus$oli Robert 12. Ras~oli l:~orms~mmst LGK:ssa 2/09/95 BK #2080 7 SCHEDULE 1 TO CONSENT TO ASSIGNMENT Assi~ors Address Robert J'. R. ussoli 950 East High Street Carlisle, PA 17013 Robert C. Russoli 9S0 East High Street Carlisle, PA 17013 I:~fo~nmst LGK:sga 2/09/95 BI(, #2080 8 SCHEDULE 2 TO CONSENT TO ASSIGNMENT Guarantors Address None l :~s~ssnm. sl LGK:sga 2/09/95 BK #2080 9 SCHEDULE 3 TO CONSENT TO ASSIGNMENT Assignees Address Trebor Square, Ltd. 950 East I-l~gh Street Carlisle, PA 17013 I:~orms~ssnmst LGK:sga 2/09D~ BK #2080 10 $CHEI)L~..~E 4 TO CON~ENT TO ASSIGNMENT O~ners Address Robert ~. Russoli 950 East High Street Carlisle, PA 17013 Robert C. Russoli 950 East High Street Carlisle, PA 17013 I:~f~ LGK:s~a 2/{D/95 BK#20$O 11 SCHEDULE 5 TO CONSENT TO ASSIGNMENT Date of Date of Date of Date of Franchise Amendments, Lease, Amendments, Restaurant # Address A~xeement if any if any if any 2080 950 East High St. 07/04/1995 06/29/1995 Carlisle, PA I:~orms~ssnm~ LGK:s~a 2/09/9~ BK #2080 12 SCHEDULE 6 TO CONSENT ASSIGNMENT 0peratin8 Partner: Robert J. Russoli Lt3K:sga 2/09/95 BK g2080 13 SCHEDULE 7 TO CONSENT TO ASSIGNMENT Equity Ownership in Assignee Owner T fE uti In er Percenta_~e Ownershi_~ Robert J. Russoli Common Voting Stock Robert C. Russoli Common Voting Stock l:keonus~assnmst LGK:ssa 2/09/95 BK #2080 14 SUCCESSOR BK # 2080 950 East High Street Carlisle, PA 17013 SUCCESSOR FRANCHISE AGREEMENT (Individual) CONTENTS PAGE INTRODUCTION 1 ...................................................................... 1. FRANCHISE GRANT: TERM AND LOCATION ........................................ 1 2. FRANCHISE FEE ...................................................................... 2 3. FRANCHISEE REPRESENTATIONS .................................................. 2 4. FRANCHISEE ASSOCIATION AND ADVISORY COUNCIL ............................. 3 5. STANDARDS AND UNIFORMITY OF OPERATION .................................... 3 A. M.O.D. Manual ................................................................ 4 B. Franchised Restaurant ......................................................... 4 1. Repair and Maintenance ............................................... 4 2. Current Image ......................................................... 5 C. Signs ........................................................................ 5 D. Equipment ..................................................................... 6 E. Vending Machines, Ete ......................................................... 6 F. Menu and Service ............................................................. 6 G. Hours of Operation ............................................................ 6 H. Uniforms ...................................................................... 7 I. Advertising and Promotional Materials .......................................... 7 J. Right of Entry and Inspection ................................................... 7 K. Interference with Employment Relations of Others .............................. 7 6. SERVICES AVAILABLE TO FRANCHISEE ............................................. 7 7. THE FRANCHISED RESTAURANT .................................................... 9 8. TRAINING ........................................................................ 9 9. ROYALTY AND ADVERTISING CONTRIBUTION ...................................... 10 A. Royalty ........................................................................ 10 B. Advert]sing, Sales Promotion and Public Relations .............................. 10 C. Gross Sales ................................................................... 11 D. Late Charge ................................................................... 12 E. Payment ...................................................................... 12 F. Audit of Advertising Contributions .............................................. 12 10. ACCOUNTING PROCEDURES: RIGHT OF AUDIT .................................... 13 A. Accounting .................................................................... 13 B. Annual Financial Statamenta ................................................... 13 C. Audits of FRANCHISEE ........................................................ 13 D. Release of Financial Information ............................................... 14 .' '*C OFILMED SUCCESSORFRANCHISE AGREEMENT (Individual) CONTENTS (continued) Paae 11. LIMITATIONS OF FRANCHISE ........................................................ 14 A. Trademarks, Trade Names, Service Marks end Trade Secrets ..................................................... 14 B. Independent Contractor ........................................................ 15 12. UNFAIR COMPETITION ............................................................... 15 13. INSURANCE: INDEMNIFICATION .................................................... 16 14. TAXES ........................................................................ 17 15. ASSIGNMENT AND TRANSFER: CONDITIONS AND LIMITATIONS ............................................................ 18 16. RIGHT OF FIRST REFUSAL ........................................................... 24 17. OPTION TO OBTAIN SUCCESSOR FRANCHISE AGREEMENT ....................... 25 18. DEFAULT AND EFFECT OF TERMINATION ........................................... 27 A. Default ........................................................................ 27 B. Effect of Termination ........................................................... 30 19. RESTRICTIVE COVENANT ............................................................ 31 20. RESOLUTION OF DEVELOPMENT DISPUTES ........................................ 31 A. Non-Binding Mediation ......................................................... 31 B. Binding Dispute Reeolution ..................................................... 32 C. Modification of Precedurea ..................................................... 32 D. Institution of Legal Proceedings ................................................ 32 21. MISCELLANEOUS: GENERAL CONDITIONS ......................................... 32 A. Interpretation .................................................................. 32 B. Non-Waiver ................................................................... 32 C. Governing Law, FonJm and Compliance ........................................ 33 D. Severebillty .................................................................... 33 E. Notices ........................................................................ 34 F. Liability of Multiple Franchisees ................................................ 34 G. Modification ................................................................... 34 H. Binding Effect .................................................................. 34 I. Survival ........................................................................ 34 J. Attomeys' Fees ................................................................ 35 K. Entire Agreement .............................................................. 35 EXECUTION ........................................................................ 35 SUCCESSOR BURGER KING~ RESTAURANT FRANCHISE AGREEMENT THIS AGREEMENT is made as of the 25th day of September, 1996, by and between BURGER KING CORPORATION, a FIodda corporation ("BKC")and Robert J. Russoli and Robert C. Russoli ("FRANCHISEE"). INTRODUCTION A. BKC is the exclusive licensee of certain trademarks and service marks, including BURGER KING~ and HOME OF THE WHOPPER®, which are registered or pending with the United States Patent and Trademark Office, and is the owner or exclusive licensee of other marks authorized for use in Burger King Restaurants (the "Burger King Marks"). B. BKC is engaged in the business of operating and granting franchises to operate Burger King Restaurants using uniform standards, product specifications and operating procedures (the "Burger King System") and the Burger King Marks. C. FRANCHISEE desires to acquire a franchise to operate a Burger King Restaurant at the location for the entire Term specified in this Agreement. FRANCHISEE acknowledges that FRANCHISEE has received a copy of the Uniform Franchise Offering Circular of BKC and has had a full and adequate opportunity to be thoroughly advised of the terms and conditions of this Agraement by financial and legal - counsel of FRANCHISEE'S own choosing at least ten (10) business days, excluding weekends and federal holidays ("Business Days") prior to its execution, and is entering into this Agreement after having made an independent investigation of BKC's operations and not upon any representation as to profits and/or sales volume which FRANCHISEE might be expected to realize, nor upon any representations or promises by BKC which are not contained in this Agreement. In consideration of the mutual covenants contained in this Agreement, the parties agree as follows: 1. FRANCHISE GRANT: TERM AND LOCATION (SEE ADDENDUM) P. --: ' - '-'."3 .-.~. 3t moro fully '~-'-"~"'" ~- 2. FRANCHISE FEE (SEE ADDENDUM) ................................................................................. =~;;:;:: .'=r th- 3. FRANCHISEE REPRESENTATIONS FRANCHISEE acknowledges his/their understanding of BKC's franchising policy of requiring all individuals who have any interest in the Franchised Restaurant, whether directly, beneficially or contingently, to be named in and be a perty to the Franchise A. greement, If FRANCHISEE consists of mere than one individual, the group must include an Operating Partner who, throughout the Term of the Agreement, lives in the locality of the Franchised Restaurant. The Operating Partner must have a minimum fifty (50%) percent unencumbered equity ownership (including profits) and a minimum fifty (50%) percent controlling interest through any voting apparatus in the Franchised Restaurant and must devote his fiJII time and best efforts to the day-to-day operation of the Franchised Restaurant with no operational or management commitments in other businesses (except other Burger King Restaurants operated under franchisee granted to such person by BKC). FRANCHISEE agrees that it has not avoided and will not hereafter, directJy or indirectly, avoid the financial interest requirements and the direct operation requirements set forth above through enb'y into a management agreement, consulting agreement or any other such artificial device or arrangement. FRANCHISEE agrees to fumish BKC with such evidence as BKC may request from time to time for the purpose of assuring BKC that FRANCHISEE'S efforts and ' equity interest remain as represented in this AgreemenL 4. FRANCHISEE ASSOCIATION AND ADVISORY COUNCIL BKC shall, on a periodic basis, consult with representatives of an independent association whose membership is comprised of at least fift~-one (51%) percent of all Burger King franchise-owned and operated restaurants in the U.S.A. (the "Franchisee Association"} relative to those matters expressly described in Paragraphs 5.B, 6, 8, 9 and 20.C of this Agreement. The representatives of the Franchisee Association shall be referred to herein as the "Franchisee Advisery Council". Membership by a Franchisee in the Franchisee Association shell be voluntary. FRANCHISEE agrees that BKC may consult with and consider the advice of the Franchisee Advisory Council. For purposes of this Franchise Agreement, to qualify as the "Franchisee Association," the association must have been formed for the primary purpose of representing the rights of franchisees, and membership in such association must be limited solely to Burger King franchisees, or officers, directors, partners or shareholders of Burger King franchisees, who in either case are not owned or controlled by BKC or its parent, or any subsidiary or affiliate of BKC. BKC shall not prohibit nor restdct FRANCHISEE from associating with other franchisees, nor from forming, joining or participating in any franchisee trade association (the "activities"). BKC shall not retaliate against FRANCHISEE because FRANCHISEE engages in the activities. BKC's exercise and enforcement of its rights under any franchise agreement or the law shall not, by itself, constitute a breach of BKC's responsibilities under the preceding sentence. Q:FRAN~FRAN_AMI~FRAN24.SAM 10195 BK//208O S. STANDARDS AND UNIFORMITY OF OPERATION BKC shall establish, and cause approved suppliers to the Burger King System to reasonably comply with, product, service and equipment specifications as established by BKC from time to time. Suggestions from FRANCHISEE for improving elements of the Burger King System, such as products, equipment, uniforms, restaurant facilities, service format and Advertising, are encouraged and may or may not be considered by BKC when adopting or modifying standards, specifications and procedures for the Burger King System. FRANCHISEE acknowledges that any such suggestions made by FRANCHISEE hereunder shall become the exclusive property of BKC BKC shall have no obligation to utilize suggestions and no obligation to provide compensation for any suggestion. FRANCHISEE may not utilize any such suggestions in the Franchised Restaurant without the prior written consent of BKC. A. M.O.D. Manual FRANCHISEE acknowledges and agrees that prompt adoption of end adherence to 8KC's comprehensive restaurant format and operating system, including a standardized design, decor, equipment system, color scheme and style of building and signage, uniform standards, specifications and procedures of operation, quality and uniformity of product and services offered and the provisions of the Manual of Operating Data (the "MOD Manual"), as amended from time to time, are reasonable, necessary and essential to the image and success of all Burger King Restaurants (the "Burger King Restaurant System'). The MOD Manual contains the official mendatory restaurant operating standards, specifications - and procedures prescribed from time to time by BKC for the operation of a Burger King Restaurant. The MOO Manual shall be kept at the Franchised Restaurant at all times and all changes or additions mede by BKC shall be inserted upon receipt. In the event of any conflict between the MOD Manual kept at the Franchised Restaurant and the master copy meintained by BKC in Miami, Florida (or such other place as may be designated by BKC) the master copy shall control. FRANCHISEE agrees that changes in the standards, specifications and procedures may become necessary and desirable from time to time and agrees to accept and comply with such modifications, revisions and additions to the MOD Manual which BKC in the good faith exercise of its judgment believes to be desirable and reasonably necessary. The material and information set forth in the MOD Manual is confidential and proprietary to BKC and is to be used by FRANCHISEE only in connection with the operation of the Franchised Restaurant and other franchised Burger King .Restaurants. The MOD Manual and other specifications, standards and operating procedures communicated in writing to FRANCHISEE shall be deemed a part of this Agreement B. Franchised Restaurant The Franchised Resteurent will be constructed and improved in the manner authorized and approved by BKC, and the appearance of the Franchised Restaurant will not thereafter be altered except es may be approved in writing by BKC. 1. Repalr and Maintenance. FRANCHISEE shall, at its expense, continuously throughout the Term of this Agreement maintain the Franchised Restaurant in good condition and repair in accordance with BKC's then current repair and maintenance standards. Dudng the seventh (7th) and seventeenth (17th) years of the Term, FRANCHISEE shall provide to BKC such evidence as BKC deems satisfactory, in BKC's reasonable discretion, that the Franchised Restaurant is in good condition and repair and that the Franchised Restaurant ia in compliance with BKC's then current repair and maintenance standards for Burger King Restaurants. 2. Current Image. FRANCHISEE shall, improve, alter and remodel the Franchised Restaurant to bring it into conformance with the national and local plans, specifications and/or other standards for new or remodeled Burger King Restaurants as may hereafter be reasonably changed and defined from time to time by BKC ("Current Image") in accordance with the following timetable: (i) During the tenth (10th) year of the Term, FRANCHISEE shall remodel, improve and alter the exterior of the Franchised Restaurant to conform with the Current Image in effect on the ninth anniversary of the date of this Agreement. (ii) BKC and the Franchisee Advisory Council shall meat annually to discuss and establish the components of Current Image for the Franchised Restaurant. The Current Image as established by BKC and the Franchisee Advisory Council, from time to time, shall be binding upon FRANCHISEE. If SKC and the Franchisee Advisory Council do not agree on the Current Image, BKC and the Franchisea Association shall settle the matter by Arbitration by a sole arbitrator in accordance with the then current non-administered arbitration rules of the Center for Public Resources. The arbitration shall be governed by the United States Arbitration Act ("U.S.A.A."), and judgment upon the decision rendered by the arbitrator shall be binding on FRANCHISEE and BKC and except as provided in Section 10(a) of the U.S.A.A., shall not be appealable in any forum. The decision may be entered by any court having jurisdiction thereof. The place of arbitration shall be Miami, Florida. Failure of the Franchisee to comply with the terms of this Paregreph 5.B shall be deamed a matadal default of this Agreement. C. Signa The Burger King Marks will only be erected and displayed in the manner and at such locations as are approved and authorized by BKC, in writing. FRANCHISEE agrees to maintain and display signs reflecting the Current Image of Burger King Restaurants and shall not place additional signs or postare at the Franchised Restaurant without the prior written consent of BKC. Only signs from sources approved by BKC may be utilized at the Franchised Restaurant. FRANCHISEE shall discontinue the use of and destroy such signs as are declared obsoleta by BKC within the reasonable time specified by BKC. Such signs are fundamental to the Burger King Restaurant Systam and FRANCHISEE hereby grants to BKC the dght to entar the Franchised Restaurant to remove and destroy unapproved or obsoleta signs in the event that FRANCHISEE has failed to do so within thirty (30) days after the written request of BKC. D. Equipment Only equipment approved by BKC which meets the critaria and performance standards of the Burger King Restaurant System may be used in the Franchised Restaurant. The equipment shall be maintained in a condition that meets operational standards specified in the MOD Manual and, as equipment becomes obsoleta or inoperable, FRANCHISEE will replace the equipment with the types and kinds of equipment as are then approved for use in Burger King Restaurants. If BKC determines that additional or replacement equipment is needed because of a change in menu itams or method of preparation and service or because of health or safety considerations, FRANCHISEE will install the additional equipment or replacement equipment within the reasonable time specified by BKC. Prior to mandating the use of a new or addltJonal piece of equipment, BKC shall use reasonable efforts to field test the proposed new equipment. E. Vending Machines, Etc. Public talephones, newspaper racks, luke boxes, cigarette, gum and candy machines, rides, lottery ticket terminals, video games or any other games, or vending or amusement machines will not be installed on the Franchised Restaurant without the prior written approval of BKC. In the event such items are installed on the Franchised Restaurant, then all sums received by FRANCHISEE in connection with these itams shall be included within "Gross Sales" as defined herein. Q:FRAN~FRAN_AMI~FRAN24.SAM 10195 BK #2080 F. Menu and Bewlce · All menu items whic.h BKC may de..em appropriate to take ~ll advantage of the potential market BKC in writing will be served. and achieve standardization in the Burger King Restaurant System w~ll be served, and no items which are not set forth in the MOD Manual or othe;wise authorized and approved by FRANCHISEE shall only sell the apprOVed menu items at rateil to consumers from and through the Franchised Restaurant and shall not sell such items for redistribution or ~sele. FRANCHISEE shall adhere to ail specifications contained in the MOD Manual or as othem~ise prescribed by BKC as to drink and other items will be served and sold in ingredientS, methods of preparation and sewice, weight and dimensions of products served, and standards of cleanliness, health and sanitation. All food, packaging that meets BKC's specifications. Only food, supplies, paper products and packaging from sources approVed by BKC shall be used in the Franchised Restaurant. G. HourS of Operation The Franchised Restaurant shall be open for business at a minimum from 7:00 A.M. to 11:00 P.M., seven (7) days a weak, fifty-two (52) weeks a year, unless othe;wise authorized or directed by BKC or unless prohibited by applicable law. The Franchised Resteurent may be closed on Thanksgiving Day and/or Christmas Day if a majodty of the Burger King Restaurants in the market area (A.D.L) in which the Franchised Restaurant is located elect to close on the holiday. H. Uniforms All employees shall only wear uniforms of suCh design and color as ara from time to time specified by BKG. I. Advertlelng and Promotional Materials . · items which ara authorized by BKC in writing Only those Advertising and promotional materials or pdor to use shall be used, sold or distributed, and no display or use of the Burger King Marks shal! be made without the prior written approval of BKC. Alt materials on which the Burger King Marks are used must include the designation u or such other designation as BKC may specify. J. Right of Entry and inspection SKC shall have the unrestricted right to enter the Franchised Restaurant to conduct such activities as it deems necesse~J to ascertain FRANCHISEE'S compliance with this Agresroent. The inspections may be conducted without prior notice at any time when FRANCHISEE or one of his employess is et the Franchised Restaurant. The inspections will be Pentombed in a manner which minimizes intefferenca with the operation of the Franchised Restaurant. K.' InterferSnce with EmplOyment Relatione of OtherS ' or induce, or attempt to Neither BKC nor FRANCHISEE will attempt, directly or indirectly, to entice or ' such entice or induCe any empioyea of the other or of another Franchisee of BKC to leave such emplOyment, employ such employee within six (6) months after his or her termination of eroPioyment with employer, except with the prior written consent of such emplOyer. 6. SERVICES AVAILABLE TO FRANCHISEE BKC agrees to provide the following services to FRANCHISEE and to use reasonable efforts to provide them in a manner reasonably designed for the Burger King System, including the use of 10196 ; BK #2080 5 .... ; ~ technology deemed by SKC to be compMitive in the quick service restaurant industry, prior to making material changes to the content of, and manner by which, the following itemS or services are delivered to FRANCHISEE, BKC shall consult with the Franchisee Advisory Council to receive input as to the proposed change. The content of and manner by which the following services are to be delivered by BKC shall be within BKC's so~e reasonable discretion: . . . . . .... ! ........ .-._!-:.-.! ..... E. SKC's MOD Manual, in an approved format a coPY of whiCh will be loaned to FRANCHISEE for the Term of this Agreement. F. Such memhandising, marketing and Advertising research data and advice as may be developed from time to time by SKC and deemed by it to be helpful in the operation of a Burger King Restaurant. G. Standardized accounting, cost control and inventory control systemS. techniques and improvements of SKC in food H CommuniCation of .neW. bev,e_l_o_p=_m, en~ ce and restaurant manag-mentwhich are relevant preparation, equipment, food prO(~UC~S, pec~ag,.e, ~,- to the operation of a Burger King Restaurant. ch on o,n .u..o. es SKC deams ree.oneb,Y n~.eary to co..tin~: " RAS~cH,S~E ~; to the 8urger ~ng S..tam ,nc,ud,~ the opere.n and advise F Restaurant. 7. THE FRANCtlISED RESI'AUI~I~NT During the 'Term of this Agreement the Franchised Restaurant shell be used exclusively for the pu~Ose of operating a franchised Burger King Restaurant. In the event the Franchised Restaurant shall be damaged or destroyed by fire or other casualty, or be required to be repaired or reconstructed by any governmental authority, FRANCHISEE shall, at its own expenSe, repair or reconstruct the Franchised Restaurant within a reasonable time under the Q:FRAN\FRAN_AMI\FRAN24'SAM 10195 BK #2080 6 The minimum acceptable appearance for the restored Franchised Restaurant will be that to have the restored circumstanceS. which existed just prior to the casualty; however, every effort should be made Franchised Restaurant reflect the then Cu~ent image, design and speCifications of Burger King restaurants, if the Franchised Restaurant is subStantiallY destroyed by fire or other casualty, FRANCHISEE may, with BKC agreement, terminate this ogreement in lieu of FRANCHISEE reconstructing the Franchised Restaurant. 8. TRAINING The Franchised Restaurant shall not open unless the Operating Partner and a designated restaurant manager have successfullY completed BKC's training program in Miami, Florida or at such other locations as may be speCified by BKC (the "initial Training"). FRANCHISEE shall train the designated restaurant manager pursuant to BKC's then current -lo.restaurant" operations training and certification program. BKC may, in its sole discretion, waive the Initial Training requirement for the designated restaurant manager, training ("Continuing BKC shall provide, and the operating partner shall attend, continuing operations ....... d subiect matter of the Continuing Operations programs f~om time to time as may be di~:tad by BKC to re.enforoe operational standards · .. ~--,.,,encv, aurora- =,. '--' -- ,~-..- Train na orograms are Operations Training"}.. ~h~e,...r~q=uv~u~t~:'~ tial"~'raining and Continuing opera-- ........ Training shall be speofi~ uy ,.--~, "'~raining Programs}, in its sole discretion, however. BKC and the hereinafter collectively mforred to as review the Training Programs and BKC will consuR with the Franchisee Advisory Council shaft peri°dically ~esbe~p thec~fie'rdret~ti · viso CounC' prior to making any me~n~ aCsh~g ~(~rograms. Such- FranchiSee Ad ry..~ .... "-~a or at such other location ay programs may be in Miami, r~u.u , ' There shall be no charge for the Operating Partner to pe~cipeta in the Training programs and no charge for the designated restaurant manager to pe~cipats in the Initial Training. FRANCHISEE shall be responsible for all trevel and living expenses (including compensation of and woflrar's compensation insurance) for the Operating partner and the manager while enrolled in any SKC Training program and any other personal expenses. FRANCHISEE shall implement a training program for Franchised Restaurant employees in accordance with training standards and procedures preecdbed by BKC and shall staff the Franchised Restaurant at all times during the Ten~ of this Agreement with a sufficient number of trained employees including at least one (1) manager who has, within six (6) months after becoming manager, succesefuily to ensure that the for exemption from the managar training completed BKC's training program for restaurant managers at an accredited location u er King operational standards are mat. Requests ....... n those stuationswhere ~.q~irement will be considered on an individual basis and will be gren~u u.,., the employees have prior operational menogement experience in a Burger King Restaurant and demonstrate to SKC a thorough knowledge and un.derstanding of the Burger King System. 9. ROYAL'I~ AND ADVERTISING cONTRiBUTiON A. Royalt~ Gross of the Burger King System and the Burger King Marks. Royalties shaft be FRANCHISEE agrees to pay to BKC a royalty of three and one-hslf (3.5%) percent of Sales ("Royalty") for the use paid monthly by the tenth (10th) day of each month based upon Gross Sales for the preceding month· B. Advarttsing, Salse promotion and Public Relations ual to four (4%) pement of FRANCHISEE'S to BKC an amount eq . ,.,,-,u,= E'S Gross Sales for (i) FRANCHISEE shall pay _.~. ~..~ n~n FRA~-,, ,,.E monthly Gross Sales by the tenth (10th) day of each mo.u, .... u,-_ Q:FRAN~FRAN_AMI\FRAN24.SAM I~. ~'~..~. ~,, ~.'~-, f~., ~ ~ 10195 BK. #2080 7 '~"- ' the preceding month (the "Advertising Contribut'on'). This sum, less direct administrative expanses, will be used for (a) market reseemh expenditures directly related to the development and evaluation of the effectiveness of Advertising and sales promotions, (b) creative, production and other costs incurred in connection with the development of Advertising, seles promotions and public ratations (as limited by paragraph (vi) below), both in the market area of the Franchised Restaurant, as reasonably defined from time to time by BKC, and on a national basis and (c) various methods of delivering the Advertising or promotional message, including without limitation, television, radio, outdoor and print ("Media"). The allocation of the Advertising Contribution between national, regional and local expenditures shall made by BKC in its sole business judgment. Periodically, but no less frequently than once per year, BKC shall meet with the (ii) Advisory Council to discuss and attempt to establish (a) the types of Media to be used by BKoCn Franchisee (the "Media Mix'') and (b) the percentage of the total annual Advertising Contribution to be expended Media (the "Media Spending Goal"). (iii) If BKC and the Franchisee Advisory Council ara unable to mutually establish the Media Spending Goat, BKC shall, subject to the limitation set for~ in Paragraph (v) below, have the right, in its sole business judgment, to establish the Media Spending Goal. If BKC and the French see .Adv sory Counctl a.m.. unable to s.g. ree .o the Media M.!x, BK..C (iv) right, in its sole business judgment, to eetabhsh the Med~a M'xn If BKC umlatere~/ shall have the establishes the Media Mix as provided above, BKC shall in no event spend more than ten (10%) percent of the prior fiscal yeats national Media expandituraS for new Media channels and any such new Media ' channel(s) must be accessible to no less than two-thirds (213) of the then established areas of dominant influence ("ADI's") in the United States. (v) BKC shall use reasonable efforts to meet the Media Spending Goal, subject to circumstances beyond its control; provided, however, that BKC shall spend no less then sixty-five (65%) paroent of the total annual Advertising Contribution on Media. (vi) The annual expenditure on public relations shall not exceed one-half of one percent of the total annual Advertising Contribution. . . . C. Gross Salee The term "Gross Sales" as used in this Agreement includes all sums charged by FRANCHISEE for goods, merchandise or sewicee sold at or from the Franchised Restaurant, including all premiums unless exempted by BKC. The sale of Burger King products away from the Franchised Restaurant is not authorized; however, should any such sales be approVed in the future, they will be included within the definition of Gross Sales. Gross sales excludes any federal, state, county or city tax, excise tax, or other similar taxes collected by FRANCHISEE from customara based upon sales, and cash received as payment in credit transactions where the extension of crad t itself has already been included in the figure upon which the Royalty and Advertising Conthbuticn is computed. O. Late Charge Any Royalty and Advertising and sales promotion Contribution not paid when due shall bear a tsta charge at the maximum rata allowed by Florida law or, if no maximum rate relating to this transaction is in effect in the State of Florida, eighteen (16%) percent per annum. Nothing in this Agreement shall be construed to mean that FRANCHISEE is to pay, or has contracted to pay, any sum in excess of that which may lawfully be charged or contracted for under any applicable law. The intention of the parties is to conform strictly to applicable usury laws and it is agreed that if an excess is inadvertently collected it shall be applied to reduce the amount owed under Paragraphs 9.A and 9.B above. E. Payment to BKC under this ~,~]raement shall b.e m~d.e, in Miami, Florida, All neymentS required to be ..made ....... desinnete in writing from time to time· or at such a~ddresses and to such parties as F. Audit of Advertising Contributions Not more than once annually, the Franchisee Association shall have the right, following reasonable notice to BKC, to audit BKC's fiscal year-end results with regard to the income and of the Advertising Contribution received by BKC for Burger King restaurants Iocatsd in the · . · - bo~ BKC following expenditures t,hhe, ,~ dbe~ r~ t~ :~sboli: h~e dst the Franchieee S A audit shall be conducted in_acco~an_,.,.~. U.. · The - - -~-~-~-' Adv sory [.;ounc,. consultation with the ~-ran~,,~.--~ a misappropriation of funds or (ii) a discrepancy resulting from an Association unless (i) the audit discloses accounting error, which is in excess of three (3%) percent of the total annual Advertising Contribution received by BKC, in either of which eventS BKC shall reimburse the Franchisee Association for the reasonable costS of the audit. Only records of the past two fiscal years will be produced for the audit. The results of the audit will be made available, on request, to FRANCHISEE. FRANCHISEE shall have no independent right to audit, provided however, if no Franchisee Association existS, franchisees owning collectively at least thirty (30%) percent or more of all Burger King franchisee-owned and operated - restaurantS in the U.S.A. shall have the right to audit under the same terms and conditions set forth in this paragraph 9.F. t0. AccOUNTING PROCEDURES: RIGHT OF AUDIT A. Accounting FRANCHISEE agrees to keep true, accurate and complete records of his business in such form as BKC now or hereafter may require and to furnish BKC with a monthly and fiscal year to date profit and loss statement in the format prescribed by BKC. FRANCHISEE shall also submit to BKC quarterly balance sheetS, the first of which shall be for the period ending three (3) months after the Franchised Restaurant opens. All profit and loss statamante and balance sheets should be prepared in accordance with generally acoeptSd accounting principles and shall be submitted to SKC within twenty-five (25) days alter the end of the period covered by the report. In addition, FRANCHISEE shall retain for a period of at least twenty-four (24) months and upon request submit to SKC copies of all state sales tax retUrnS and all supporting data and records relating to sales made at or from the Franchised Reeteurant and such other records as BKC may reasonably request from time to time. B. Annual Financial Statenmnt~ Within one hundred and twenty (120) days after the close of each fiscal year, FRANCHISEE shall submit a full disclOSUre of all persons with any interest in the Franchised Restaurant and a complete annual financial statement for the Franchised Restaurant, whiCh statement, if requested by SKC, shall be certified by a Certified Public Acoountent- C. Audits of FRANCHISEE FRANCHISEE agrees that BKC or itS representatives, at SKC's exponsa, shall, at all reasonable times, have the right to examine or audit the books, recordS, state sales tax returns or accountS of FRANCHISEE. BKC shall similarly have the right to examine or audit the I~x~ks, records, state sales tax 1 OI9 5 rtnership name, FRANCHISEE shall not use tion of a corporate or p..a ....... ,~ nfusin I similar to the (3) I.n. th.e ad_o_~ .. . r abbravla'dons, or a.y .,~,..s co gY any of the Burger King MarKs, any venations o Burger King MarkS. B. independent Contractor FRANCHISEE is an independent contractor and is not an agent, partner, joint venturer, joint employer, or employee of BKC, and no fiduciary relationship between the pa~eS exists. FRANCHISEE shall be the sole and exclusive employer of its employees with the sole right to hire, discipline, discharge, and establish wages, hourS, benefits, employment policieS, and other terms and conditions of employment and conditions of employment of FRANCHISEE's employees. FRANCHISEE shall have no right to bind or for its employees without consultation with or approval by BKC. BKC sbell have no control over the terms obligate BKC in any way nor shall he represent that he has any right to do so. In all public records and in FRANCHISEE's relationship with other parsons, on stationery, business forms and checkS FRANCHISEE shall indicate independent ownership of the ~renchised Restaurant and that it is operated under a Franchise granted by BKC. FRANCHISEE shall exhibit at the Franchised Restaurant, in such plaCes as may be designated by BKC, a notiflc~ion that the Franchised Restaurant is operated by an independent operator and not by BKC. '12. UNFAIR coMPETITION making Franchised FRANCHISEE acknowledges the uniqueneSs of the Burger King System and that BKC is · ' for FRANCHISEE to its knowledge, know-how end expanse available to him for the purpose of operating the know-how and expertise Restaurant. FRANCHISEE agrees that it would be an unfair method of competition use or duplicate or to allOW others to use or duplicate any of the knowledge, and received from BKC for any usa other than for the operation of franchised Burger King ReStaurants. busineSs at the Franchised Restaurant and dudng the Term FRANCHISEE, therefore, warrants that during the Term of this Agreement, he will utilize his beat continuing efforts to promOte and develop the thereafter will not directly or indirectly engage in the operation of any restaurant, hereof and at all times other Burger King Restaurants franchised from BKC, which other than the Franchised Restaurant and utilizes or duplicates the Burger King System, any trade secrets of BKC, the Burger King Marks or the present or any former Burger King Current Image. 13. INSURANCE: iNDEMNIFICATION A. FRANCHISEE agrees to cam/ et his expense during the Term of this Agreement Comprehensive General Liability insurance, including products Liability and Breed Form Contractual ONE MILLION ($1,000,000.00) DOLLARS par occurrence for bodily Liability, in an amount of not lesS than DOLLARS per occurrence for property damage, injury and FIVE HUNDRED THOUSAND ($500,000.00) reasonably requeSt from time to time during the Term of this in such increased amounts as BKC may . ' ' des its affiliated and parent companieS as o.r _ I' will name BKC .and its subsld~..:.~ wthout thirty [30) days prior written /~greernmnt. Ea_c~h ~ ~.,.~Vide that the policy cannot be ~....lled acts or omissions, edditional insure~, w., P,.-- EE under Paragraph 13.C. Additionally, BKC, will insure against the Ilabil~ of BKC for both its and FRANCHISEE'S notice to _ ctua liability of FRANCHIS er · in an amount of ONE and will ~nsum 'khe contra . ~,=^u~-~l-qEE'S expense, umbrella coy ag par ~NCHISEE agreee to carny, ~ rnA, ..... basic ComprehensiVe General Llabil~ insurance MILLION ($1,000,000.00) DOLLARS over the (10) Burger King Resteurenta, the umbrella restaurant except that if FRANCHISEE owns more than ten coverage applicable to all such restaurants need not exceed TEN MILLION ($10,000,000) DOLLARS. The insurance afforded by the policy or policieS respecting liability shall not be limited in any way by reason of any insuranCe which may be maintained by BKC. Pdor to the Commencement Date, -"."' Q:FRAN~FRAN_AMI\FRAN24'SAM 10~95 BK #2080 1 1 FRANCHISEE shall furnish to SKC Certificates of Insurance reflecting that the insurance coverage is in effect pursuant to the terms of this Agreement. All policies shall be renewed, and a renewal Certificate of be specified by BKC pdor to · . . ' separate and Insurance mailed to BKC in Miami, Florida, or at such other location as may the expiration date of the policies· This obligation of FRANCHISEE to maintain ~nsurance ~s be distinct from its obligation to indemnify BKC under the provisions of Paragraph 13C and shall not affected by reason of the negligence of or a claim of negligenca against SKC. B. FRANCHISEE agrees to secure and pay premiums on a Worker's Compensation policy covedng himself and all his employees, as required by law. C. FRANCHISEE is responsible for alt losses or damages and contractual liabilities to third persons arising out or in conneCtion with possession, ownership or operation of the Franchised · nrocerty or for injury, illness or death of persons a, '[le,ms or damands for da?_._ee?__"_":::^ indamn , and sev* and ,ts Restaurant, and for _. 'herefrom FRANCHIng''- a~js~==, .......... any such claims, directly or indirectty resulting ~ · ' subsidiaries, its affiliated and parent companies harmless of, from and with respect to demands, losseS, obligations, costs, expenses, Ilebilities, debts or damages. This obligation to indemnify and defend BKC shall apply even in the event of the negligence of or claim of negligence against BKC and regardless of whether the negligence or claim of negligence against BKC is as a result of the acts or omissions of SKC or that of the FRANCHISEE. However, the obligation of the FRANCHISEE to indemnify BKC for its own negligence shall be limited to an amount equal to the amount of insurance set forth in Paragraph 13.A. BKC's right to indemnity under this Agreement shall arise and be valid notwithstanding that joint or concurrent liability may be imposed on BKC by statute, ordinanCe, regulation or other law. acts or omissions, - by the amount of insurance required under Paragraph 13.A. This indemnity obligation The indemnification of BKC by FRANCHISEE for FRANCHISEES own negligence, shall not be limited raletad to the employment of FRANCNISEE'S employees. This shall include, but not be limited to, claimS obligation of FRANCHISEE to indemnify and defend BKC is separate and distinct from its obligation to maintain insurance under the provisions of paragraph 13.A. BKC shall notify FRANCHISEE of any claims, and FRANCHISEE shall be given the opportunity to assume the defense of the matter; however, BKC shall have the right to participate in the defense of any claim or action against it which is assumed by FRANCHISEE, at SKC's own cost and expense. If FRANCHISEE fails to assume the defense, BKC may defend the action in the manner it deems appropriate, and FRANCHISEE shall pay to BKC all costs, including attorneys' fees, incurred by BKC in effecting such defense, in addition to any sum which BKC may pay by reason of any seffiement or any claim against BKC shall be made by FRANCHISEE which is judgment against BKC. No settlement of 13.A or which would subject SKC to liability in excess of the amount of insurance referred to in paragraph Any final judicial in any amount not covered by such insuranCe without the prior written consent of BKC..nsuranca required determination of the negligence of SKC in an amount in excess of the policy limits of under paragraph 13.A shall be the responsibility of BKC. t4. TAXES · or assessed in connection with the possession, FRANCHISEE shall pay when due all taxes levied or received use or other ad valorem taxes (other than any ownership or operation of the Franchised Restaurant or in connection with amounts paid under this Agreement, including without limitation any sales, tax that is measured by or related to the net income of BKC or to its corporate status in a state). If any such tax shall be paid by BKC, FRANCHISEE shall premptiY reimburse BKC the amount paid. In the event of any bona fide dispute as to the liability for a tax assessed against FRANCHISEE, FRANCHISEE may contest the validity or the amount of the tax in accordanCe with procedures of the taxing authority. FRANCHISEE shall not permit a tax sale or seizure against the Franchised Restaurant or equipment. 10/95 - -' - ':'i' _ eK #2oeo 12 ASSIGNMENT AND TRANSFER: CONDITIONS AND LIMITATIONS A. This Agreement and the franchise grant are personal to FRANCHISEE, and FRANCHISEE shall not sell, assign or transfer this Agreement or any right of ownership interest in the f~anchise granted, nor permit any such assignment or transfer to occur directly, indirectly or contingently by agreement or operation of law wRhout the prior written consent of an officer of SKC.. B. FRANCHISEE shall not pledge, mortgage, hyoothecate, give as security for an obligation then cur;ent third-party or in any manner encumber this Agreement or the fran'chi'~e granted herein except wRh the express written consent of BKC given in connection with the execution of BKC's intercreditor agreement. FRANCHISEE shall pay SKC a transfer fee of Two Thousand ($2,000) Dollars for the costS and expenses incurred by BKC in connection with facilitating the execUtion of the intercreditor C. In the event of the death or incapacity of FRANCHISEE or, if ' tb~oena assigned to a Corporation, the death of an owner of Voting ~,ommOn Stock, ,,,~ transfer of decedent's interest to his heirs, suwiving spouse, or partoer or shareholder owning at least twenty-five (25%) percent of the Voting Common Stock (if a corporation) (collectively and individually an "Heir"), subject to the following conditions: (1) The Heir must complete and be approved through BKC's. standard franchisee selection process including satisfactorily demonstrating to BKC that the heir meetS the financial, character, ' and managerial criteria, as well as equity ownership and such other criteria and conditions as BKC shall then be applying in considering applications for neW franchises. (2} The Heir shall have successfully completed BKC's training for now Franchisees· (3) The Heir shall agree, in writing, to assume liability for and to perform all the terms and conditions of this Agreement to the same extent as the original franchisee. (4) If the Heir is not approved or there is no heir, the estate of the deceased shall use itS best efforts to sell the Franchised Restaurant to an acceptable party within twenty-four (24) months from the date of FRANCHISEE's death or incepec~, and BKC shall have an option, but not the obligation, to operate end/or manage the Franchised Restaurant for the account of FRANCHISEE's estate until the deceased or incapacitated FRANCHISEE'S interest is transferred to another party acceptable to BKC. Should BKC elect to operate and/or manage the Franchised Restaurant, BKC shall make a complete operation to FRANCHISEE'S estate, less expenses accounting and shall forward the nat income from the acceptable if the conveyance of the Franchised Restaurant to a party and a reasonable management fee. (24) month period, BKC shall have the option to to BKC has not taken place within the twenty-four purchase the Franchised Restaurant at fair market value. D. W~th the prior written consent of BKC, FRANCHISEE may assign this Agreement to a corporation (the "Corporation"). BKC may impose reasonable conditions on the assignment, including without limitation: ' nment to the Corporation will not relieve FRANCHISEE of personal (1)' The ase~g ............. ,~-r this Franchise Agreement. liability to BKC for the performance or' al oo ~ga~ u,= ,~ · · corn liance with this Agreement, BKC shall have. (2) For the purpose of detarml_n~g P ntant of the articles or certificate the right at any time to examine and approve the form and co incorporation and by-lews of the Corporation (the "Govermng Instrume ~o/95 [... ..' BK #20RO 1 3 *~ '';'~ j *j -- -- (3) The Corporation shall issue Voting Common Stock and may issue either Non-Voting Common Stock or Non-Voting Preferred Stock. The Corporation may not issue both Non-Voting Common Stock and Non-Voting Preferred Stock. As used herein, the term "Non-Voting Stock" refers to the Non-Voting Common Stock or the Non-Voting Preferred Stock and the term "Stock" refers collectively to Voting Common Stock and Non-Voting Stock. (4) FRANCHISEE shall own one hundred (100%) percent of the outstanding shares of Voting Common Stock. The Operating Partner must remain the owner of not less than fift~ (50%) percent of the outstanding shares of Voting Common Stock after any transfer or issuance of shares of the Corporation. (5) Shares of Non-Voting Stock may be issued to, owned and held only by the spouse and/or children of the FRANCHISEE ("Immediate Family") and key employees of FRANCHISEE'S franchised Burger King Restaurant(s). Pdor to the issuance of any and all Stock, FRANCHISEE shall take all steps reasonably necessary to comply with applicable state and federal laws and regulations including any applicable disclosure requirements. (6) A Corporation issuing Non-Voting Stock shall adopt and use the provisions set forth in BKC's "Guidelines For The Preparation Of Corporate Governing Instruments" (the "Guidelines"), receipt of a copy of which is hereby acknowledged by FRANCHISEE. (7) Neither the governing instruments nor any other agreement shall grant to owners of shares of Non-Voting Stock the ability to prevent the approval of an action otherwise approved by the- owners of all the shares of Voting Common Stock. (8) FRANCHISEE shall cause the Corporation to comply with the provisions of this Agreement, including the Guidelines and the governing instrumonts. If the Corporation fails or is unable to comply with these provisions, including but not limited fo the provisions limiting the voting rights of owners of shares of Stock, the provisions limiting the number of owners of Voting Common Stock, the provisions limiting the payment of dividends and the provisions requiring redemption or repurchase of shares of Stock, then the FRANCHISEE shall take action to cause substantial compliance, which action may include the purchase by FRANCHISEE of shares of Non-Voting Stock and, if FRANCHISEE fails or is unable to cause substantial compliance, then BKC may declare FRANCHISEE and the Corporation in default under this Franchise Agreement and any other Franchise Agreement similarly affected by FRANCHISEE'S failure or inability. (9) Immediate Family and key employees shall not be required to become personally liable for the performance of the terms and conditions of the Franchise Agreement as a result of their ownership of shares of Non-Voting Stock. (10) Under the provisions set forth in the Guidelines, the governing instruments shall require that the Corporation shall redeem Non-Voting Stock at such time as the holder ceases to be a key employee or a member of the Immediate Family. (11) No shares of Stock may be pledged, mortgaged, hypothecated, given as security for an obligation or in any manner encumbered. (12) Any sale, Iransfer, assignment or issuance of shares of Voting Common Stock shall be subject to BKC's approval. In the case of an acquisition of additional shares by the Operating Partner, this requirement shall be satisfied by BKC being given written notice describing the transaction within seven (7) days following the transfer or issuance. At no time shall the Corporation have more than five (5) holders of shares of Voting Common Stock unless otherwise authorized in writing by the Chief Executive Officer of BKC. Q:FRAI~FRAN_AMI~FRAN24.SAM 10/95 B)C #20SO [ ': "~'~-':l/ (13) The Corporation shall not engage in any business activity other than that which is directly related to the ownership and operation of FRANCHISEE's franchised Burger King Restaurant(s). (14) The governing instruments of the Corporation shall reflect the limitation in the number of shareholders of Voting Common Stock and that the issuance and transfers of shares of Voting Common Stock are restricted and may be issued or transferred only with the written consent of BKC. (15) All Stock certificates shall include the following legend: THE OWNERSHIP AND TRANSFER OF THIS STOCK IS SUBJECT TO THE TERMS AND CONDITIONS OF THE ARTICLES OF INCORPORATION, THE BY-LAWS OF THIS CORPORATION AND OF A FRANCHISE AGREEMENT WITH BURGER KING CORPORATION. REFERENCE IS MADE TO SUCH FRANCHISE AGREEMENT AND THE PROVISIONS OF THE ARTICLES OF INCORPORATION AND BY-LAWS OF THIS CORPORATION, COPIES OF WHICH ARE ON FILE WITH THE RECORDS OF THE CORPORATION. (16) FRANCHISEE shall comply with the requirements of Paragraph 11.A(3) of this Agreement in the adoption of any corporate name. E. If more than one (1) individual comprises the FRANCHISEE, the assignment, in whole or in part, by any such individual (the "Individual Seller") of his ownership interest in the Franchised Restaurant (or if this Agreement has been assigned to a Corporation or other entity pursuant to Paragraph - 15.D herein, the assignment of his stock or other security of the Corporation or other entity) shall be subject to the pdor written consent of BKC, which consent will not be unreasonably withheld upon compliance with the conditions requimcl by BKC on the assignment. BKC shall use reasonable efforts to provide consent to the assignment to FRANCHISEE, or communicate notice of disapproval, within ninety (90) days (for transactions involving less than tan (10) restaurants the time frame shall be sixty (60) days) of receipt by BKC of FRANCHISEE'S notice of assignment and the furnishing of all reasonably requested information. Conditions on the assignment may include but are not limited to the following: (1) For the purpose of determining compliance with this Agraement, BKC shall have the right at any time to examine and approve the form and content of the governing instruments. (2) All obligations of FRANCHISEE to BKC, whether adsing under this Agreement or otheflvise, must be satisfied at the time of transfer. (3) Prospective purchaser must complete and be approved through BKC's standard franchisee selection process including satisfactorily demonstrating to BKC that he meets the financial, character, managerial, equity ownership and such other cdteria and conditions as BKC shall then be applying in considering applications for new franchises. (4) Pmepective purchaser shall have satisfactorily completed BKC's training for new franchisees. (5) Approval by BKC of the terms of the contract of sale which impact the sufficiency of cash flow from the business after payment of debt service to provide for, among other things, any needed remodeling of the Franchised Restaurant. (6) FRANCHISEE seller shall pay BKC an assignment fee of Two Thousand ($2,000.00) Dollars for the costs and expenses incurred by BKC in connection with the transfer of the first Burger King Restaurant involved in the transaction and Five Hundred ($500.00) Dollars for each additional Burger King Restaurant involved in the same transaction. In the event the prospective purchaser is not an Q:FRAN~FRAN_AMI~FRAN24.SAM 10195 BK #2080 existing approved Burger King Franchisee, FRANCHISEE seller shall pay BKC a New Franchisee Training Fee of Two Thousand ($2,000.00) Dollars in connection with the transfer of the first Burger King Restaurant involved in the transaction. · (7) Execution by FRANCHISEE seller of a general release of BKC in a form satisfactory to BKC. F. If BKC does not accept the offer to purchase the Franchised Restaurant as provided in Paragraph 16, FRANCHISEE may conclude the sale to the purchaser who made the offer provided BKC's consent to the assignment be first obtained, which consent will not be unreasonably withheld upon compliance with the conditions imposed by BKC on the assignment. The conditions on the assignment may include, but ara not limited to, the conditions set forth in Paragraph 15.E above. BKC shall use reasonable efforts to provide consent of the assignment to FRANCHISEE, or communicate notice of disapproval, within ninety (90) days (for transactions involving less than fen (10) restaurants the time frame shall be sixty (60) days) of receipt by BKC of FRANCHISEE'S notice of assignment and the fumishing of all reasonably requested information. G. In the event of a transfer, sale, assignment, merger or consolidation by FRANCHISEE of all interest in this ,a,~mement, the Franchised Restaurant, or a transfer of all or part of an Individual Seller's inferest in the Franchised Restaurant (or all or part of the stock if FRANCHISEE is a corporation as defined in Paragraph 15.D above), the FRANCHISEE or Individual Seller (hereinafter '~ransferer") shall remain personally liable for all Royalty, Advertising Contribution and other payments which come due during the pedods of time hereinafter described, in accordance with the following criteria: (1) If Transferor has transferred Tranaferor's inferest pursuant to a contract of sale which provides that installment payments of the purchase price are to be made to the Transferor or Transferor's designee, liability will continue for the longer of:. (i) twelve (12) months from the date of assignment, or (ii) such time as the payments are to be made, including any extensions, provided, however, that after the first anniversary of such I~ansfer, the liability of the Transferor shall be limited to the total amount of the original installment payments to be made under the contrac~t for sale or other instrument evidencing the debt. In the event the holder of the note or other evidence of debt deems the obligation satisfied, Transferor will simultaneously be released from liability to BKC under this Ag~ement for Royalty and Advertising payments. Any contract for sale which provides for installment payments of the purchase pdce shall provide that such payments are subordinafe to the payment of Royalty and Advertising Contributions called for in this Agreement and that the note or other evidence of the obligation shall not be assignable by the holder or payee. (2) If the Transferor has transferred Transferor's inferest pursuant to a contract of sale which provides for cash payment in full, upon transfer, of the entire purchase price, the Trensferor's liability shall continue, for a pedod of twelve (12) months from the date of the transfer, and shall be limited to the amount of Royalty fees and Advertising fees which accrued during such pedod and are not paid by Transferee. Upon payment of such amounts, Transferor shall be automatically released from any continuing liability under this Agreement for Roya~ and Advertising payments. H. FollOWing a transfer of Transferor's interest, in the event BKC seeks to enforce continuing liability pursuant to Paragraph 15.G of this Agreement against a transferor, the immediately preceding Transferor of an inferest in the franchise will be afforded an opportunity to cure the default and the right to reassume the position of franchisee under the terms of this Franchise Agreement provided all of the following conditions have been met: (1) At the time of transfer, the Transferor must have been in good standing with BKC in accordance with the operational expansion crifeda then in effect for Franchise Approval; Q:FRAN~FRAN_AMI\FRAN24.SAM 1 OI95 BK //2080 ' -' "'~ ~-',' I (2) At the time of proposed m-entry, the Transferor must be in good standing and be able to satisfy BKC's then current Franchise Approval Cdteda and Expansion Approval Criteria and deliver to BKC appropriate application forms and such other documents and agreements as BKC may reasonably require evidencing the assumption by Transferor of the rights and obligations under the remaining term of the Franchise Agreement. (3) At the time of re-entry, BKC shall be paid, in full, all sums past due and owing under this Franchise Agmernent and any agreement related to the Franchised Restaurant, as well as any past due sums related to products or supplies sold by BKC for usa in the Franchisad Restaurant, including without limitation, any pre- and post-petition amounts due fi'om any franchisee with regard to the Franchisad Restaurant which is the subject of a proceeding under the United States Bankruptcy Code or any similar law affecting the rights of creditors generally. (4) Transferor mbst take possession of and acquire control and dominion over substantially all of the tangible real and personal property associated with the operation of the Franchisad Restaurant. I. During the period of time in which Transferor remains liable.pursuant to Paragraph 15.G above, BKC shall use reasonable efforts to send simultaneous copies of notices of default under this Franchise Agreement to Transferor. Transferor shall usa reasonable efforts to send simultaneous copies of notices of default under any installment payment due to Transferor from Transferee. Failure of either party to provide copies of the notices of default shall not be an event of default under the terms of this Franchise Agreement. Transferor shall be afforded the same opportunity to cure as is sat forth in the- Notice of Default. J. In addition, FRANCHISEE agrees that, prior to acquiring any other Burger King Restaurant franchise which may be offered to him for sale or which he may offer to purchase, such franchisa will first be offered to BKC on the same terms, conditions and price in accordance with Paragraph 16. 16. RIGHT OF FIRST REFUSAL A. In the event FRANCHISEE receives an acceptable bona fide offer from a third party to purchase the Franchised Restaurant or any portion thereof or interest therein, FRANCHISEE shall give BKC written notice setting forth the name and address of the prospective purohasar, the price and terms of the offer together with a franchisee application completed by the prospective purchasar, a copy of the Purchase and Sale Agreement, executed by both FRANCHISEE and purchaser, and all exhibits, copies of any .real estate purchase agreement or agreements, proposed security agreements and related promissory notes, assignment documents, title insurance commitment and any other information that BKC may request in order to evaluate the offer. BKC shall then have the prior option to purchasa FRANCHISEE'S interest covered by the offer at the price and upon the same terms of the offer. If the consideration is not money, the purchasa pdca shall be cash equal to the fair market value of the consideration. BKC shall have twenty (20) Business Days after receipt of FRANCHISEE'S notice of offer and the furnishing of all reasonably requested information within which to notify FRANCHISEE of its intent to accept or reject the offer. Silence on the part of BKC shall constitute rejection. If the proposed sale includes assets of FRANCHISEE not related to the operation of franchised Burger King Restaurants, BKC may, at its option, elect to purchasa only the assets related to the operation of franchisacl Burger King Restaurants and an equitable purchase price shall be allocated to each asset included in the proposed sale. This right of first refusal shall apply to any transfer, conveyance, assignment, consolidation, merger or any other transaction in which legal or beneficial ownership of the franchise granted by this Agreement is vested in other than the individual FRANCHISEE. If this Agreement has been assigned to a Corporation in accordance with Paragraph 15 of this Agreement, then this right of first refusal shall also Q:FRAN~FRAN.AMI~FRAN24.SAM lo/ss !- ( ~ '~'.." ~'. ~1 ! BK //2080 ' 17 ~,)~, -~ apply if Voting Common Stock in the Corporation is so~d, assigned or transferred to individuals or entities other than those approved by BKC as owners of the Voting Common Stock. B. The election by BKC not to exercise its right of first refusal as to any offer shall not affect its right of first refusal as to any subsequent offer. C. Any sale, attempted sale, assignment or other transfer of the franchise grant other than a transfer pursuant to Paragraph 15.C or 15.D effected without §rst giving BKC the right of first refusal described above shall be void and of no force and effect. If this Agreement has been assigned to a Corporation in accordance with Paragraph 15 of this Agreement, any sale, attempted sale, assignment or other transfer of Voting Common Stock in the Corporation to individuals or entities other than those approved by BKC as owners of Voting Common Stock of such Corporation without first giving BKC the right of first refusal described above shall be void and of no force and effect. 17. OPTION TO OBTAIN SUCCESSOR FRANCHISE AGREEMENT FRANCHISEE shall have, exercisable on the expiration date of the Term of this Agreement, an option to obtain a Successor Burger King Restaurant Franchise Agreement ("Successor Franchise Agreement") for a term of twenty (20) years, provided that: A. FRANCHISEE has given BKC written notice ("Notice") of its intention to exercise its Option to Obtain a Successor Franchise Agreement during the fourth year prior to the expiration of the. Term of this Agreement. B. FRANCHISEE, at the time of the Notice and at the time of the expiration of the Term of this Agreement, is not in default of and has substantially complied with the terms and condititions of this Agreement consistently and throughout its Term, including but not limited to the following: (1) FRANCHISEE has operated the Franchised Restaurant in accordance with the terms and conditions of this Agreement, including, but not limited to, operating the Franchised Restaurant in compliance with the operating standards and specifications established f~om time to time by BKC as to quality of sewice, cleanliness, health and sanitation; (2) FRANCHISEE has satisfied, in a timely fashion, all financial obligations in accordance with the terms and conditions of this Agreement; (3) FRANCHISEE has maintained, improved, altered, replaced and remodeled the Franchised Restaurant, including, without limitation the Premises, Improvements, signs and equipment, throughout the Term of this Agreement in accordance with the terms and conditions of this Agreement. (4) FRANCHISEE shall have completed, not more than three (3) years and not less than three (3) months prior to the expiration of the Term of this Agreement, the improvements, alterations, remodeling or rebuilding of the interior and exterior of the Franchised Restaurant so aa to reflect the then Current image of Burger King Restaurants, pursuant to such plans and specifications as BKC reasonably approves. (5)' Execution by FRANCHISEE of a general release of BKC in a form satisfactory to BKC. C. W~in one hundred and twenty (120) days after receipt of the Notice, BKC shall advise FRANCHISEE in writing if FRANCHISEE is not eligible to obtain a Successor Franchise Agreement, specifying the reasons for such ineligibility and identifying whether such deficiencies are capable of cure. Between the date of the Notice and the expiration date of the Term of this Agreement, if any act, Q:FRAN~FRAN_AMI~FRAN24.SAM BK //2080 18 cimumstance or omission causes FRANCHISEE to become ineligible to obtain a Successor Franchise Agreement then BKC shall advise FRANCHISEE in writing thereof, specifying the deficiency and identifying a cure period if applicable. D. FRANCHISEE has the right to remain in possession of the Franchised Restaurant for the term of the Successor Franchise Agreement. E. FRANCHISEE shall execute the then current form of Successor Franchise Agreement, which may differ as to Royalty and Advertising Contributions, as well as other terms and conditions. FRANCHISEE shall, upon execution of the Successor Franchise Ag~ement` pay to BKC the then current Franchise Fee. 18. DEFAULT AND EFFECT OF TERMINATION A. Default If an act of default hereunder is committed by FRANCHISEE, and FRANCHISEE fails to cure the default after any required notice and within the cure pedod applicable, BKC may, at its option and without prejudice to any other rights or remedies provided for hereunder or by law, terminate the Franchise Agreement by written notice or otherwise. The applicable cure pedod shall be as described below but, if a cure period is not specifically mentioned, it shall be thirty (30) days. In some cases, as identified below, no cure period is allowed and no notice may be required. If any applicable law or rule requires a longer notice pedod or a longer cure period than that provided herein, then the period required under the law or. rule shall be substituted for the requirements herein. The following are material acts of default and shall be good cause for termination: (1) FRANCHISEE fails to operate the Franchised Restaurant fn accordance with the operating standards and specifications established from time to time by BKC as to service, cleanliness, health and sanitation. FRANCHISEE shall have five (5) days after notification to core the default. (2) FRANCHISEE sells any product which does not conform to BKC's specifications. FRANCHISEE shall have five (5) days after notification to cure the default. (3) FRANCHISEE fails to sell products designated by BKC. FRANCHISEE shall have five (5) days after notification to cure the default, provided, however, if for reasons beyond the control of FRANCHISEE, FRANCHISEE is unable to obtain such products within the cure period, the default cure period shall be extended for a reasonable period of time provided FRANCHISEE initiates and actively pursues substantial and continuing action within the cure period to cure such default. (4) FRANCHISEE sells products not approved by BKC. FRANCHISEE shall have Five (5) days after notirk:ation to cure the default. (5) FRANCHISEE uses equipment, uniforms or decor not approved by BKC. (6) FRANCHISEE fails to maintain the Franchised Restaurant in good condition and repair, or fails to make all improvements, alterations or remodelings as may be determined by BKC to be reasonably necessary to reflect the Current Image as provided in Paragraph 5.B, as and when required. (7) FRANCHISEE fails to pay when due any Royalty or Advertising and sales promotion Contribution required to be paid under this Agreornent. FRANCHISEE shall have tan (10) days after notification to cure the delinquency. Q:FRAN~FRAN_AMI~FRAN24.SAM 10195 1 9 · ,", L (8) FRANCHISEE (i) fails to submit any information required by Paragraph 10 above ("Accounting Procedures") or (ii) knowingly submits a financial statement which understates Gross Sales. If the act of default set forth in (ii) occurs, BKC shall have the right to immediately terminate this Agreement without notice and FRANCHISEE shall have no dght to cure. (9) FRANCHISEE abandons the franchise relationship without the pdor consent of BKC at any time during the Term of this Ag~ement. The cessation of operation of the Franchised Restaurant on the Premises other than with the consent of BKC, whether the Premises remain vacant or are converted to another use, shall be considered abandonment of the franchise relationship, provided, however, that the Franchised Restaurant shall not be deemed abandoned if the cessation is due to circumstances beyond FRANCHISEE'S reasonable control (such as lack of electricel power, weather conditions, earthquakes, stdkes and the like) and FRANCHISEE diligently undertakes to resume operations after the reason for such cessation has been abated. (10) FRANCHISEE ceases to occupy the Franchised Restaurant. If the loss of possession is the result of governmental exercise of eminent domain, FRANCHISEE may, with BKC's consent and subject to availability, relocate to other premises in the same market a~a for the balance of the term of this Agreement. (11) FRANCHISEE (if FRANCHISEE consists of more than one (1) person, the Operating Partner or the partnership, and if the franchise has been aseigneq to a Corporation, the Corporation) files a petition or appiicetion seeking any type of relief under the Bankruptcy Code or any state insolvency or similar law, or someone files a petition or application seeking to have FRANCHISEE adjudicated a bankrupt, or seeking other relief against FRANCHISEE under the Bankruptcy Code or any state insolvency or similar law and the petitioner application is not dismissed within ninety (90) days after it is filed. Subject to the applicable law, the Franchise shall terminate without notice or cure pedod upon the occurrence of this act of default as if that date ware the expiration date and FRANCHISEE expressly and knowingly waives any rights that he may have under the provisions of the Bankruptcy Code and consents to the termination of this Agreement or any other relief which may be sought in a Complaint filed by BKC to lift the provisions of the automatic stay of the Bankruptcy Code. Additionally, FRANCHISEE agrees not to seek an Injunctive Order from any court in any jurisdiction relating to insolvency, reorganization or arrangement proceedings which would have the effect of staying or enjoining this provision. (12) FRANCHISEE admits in writing his inabil~ to pay his debts as they mature or makes an assignment for the benefit of creditors, or a receiver (permanent or temporary) for any part of his property is appointed by a court of competent authority. If this act of default shall occur, BKC shall have the dght to immediately terminate this Agreement without notice or cure period. (13) A final judgment against FRANCHISEE remains unsatisfied of record for thirty (30) days (unless a superaedees or other appeal bond has been filed) or if a levy of execution is made upon the f~anchise granted by this Agreement or upon any property used in the Franchised Restaurant, and it is not discharged within five (5) days of said levying. (14) Conviction of FRANCHISEE or, if this Agreement has been assigned to a Corporation, conviction of the Corporation or an officer, director or shareholder of the Corporation in a court of competent jurisdiction of an indictable offense punishable by a term of imprisonment in excess of one (1) year. If thi~ act of default shall occur, BKC shall have the right to terminate this Agreement, such termination to be effective upon notice to FRANCHISEE but with no opportunity to cure. (15) FRANCHISEE uses or duplicates the Burger King System or engages in unfair competition in violation of Paragraph 12 or discloses any trade secrets of BKC in violation of Paragraph 11.A(1). If this act of default shall occur, BKC shall have the right to terminate this Agreement, such termination to be effective upon notice to FRANCHISEE but with no opportunity to cure. Q:FRAN~FRAN_AMI\F RAN24.SAM .... ...__ BK //2080 20 (16) FRANCHISEE denies BKC the right to inspect the Franchised Restaurant or to audit the sales and accounting records of the Franchised Restaurant. (17) Conduct by FRANCHISEE which is deleterious or reflects unfavorably on FRANCHISEE or the Burger King Restaurant System by exhibiting a reckless disregard for the physical and mental well being of empJoyess, customers, BKC representatives or the public at large including, but not limited to, battery, assault, sexual harassment or other forms of threatening, outrageous or unacceptable behavior. (18) Failure by FRANCHISEE to maintain a responsible credit rating by failing to make prompt payment of undisputed bills, invoices and statements from suppliers of goods and een~ices to the Franchised Restaurant. (19) The sale, assignment, merger or transfer of any interest of FRANCHISEE in this Agreement in violation of Paragraphs 3, 15 or 16 and, if this Agreement has been assigned to a Corporation, the creation, sale, assignment, or transfer of the stock of the Corporation, in violation of Paragraphs 3, 15 or 16. (20) FRANCHISEE, without the wdtten consent of BKC, enters into a management agreement or consulUng arrangement relating to the Franchised Restaurant. (21) Failure to restore the Franchised Restaurant after damage or destruction as provided in Paragraph 7. (22) The knowing and intentional submission by FRANCHISEE of a franchise application and/or management COmmitment form which contains any false or misleading matedal statementa or omits any material tact. If this act of default shall occur, BKC shall have the right to terminate this Agreement, such termination to be effective upon notice to FRANCHISEE but wJth no opportunity to cure. (23) Repeated breaches of provisions of this Agreement. (24) The acquisition of an interest in a business in violation of Paragraph 19. (25) ' Failure by FRANCHISEE to comply with any other provisions of this Agreement. The failure of BKC to terminate this Agreement upon the occurrence of one or more events of default will not constitute a waiver or othen~visa affect the right of BKC to terminate this Agreement because of a COntinuing or subsequent failure to cure one or more of other default, the aforesaid events of default or any B. Effect of Termination (1) Upon termination or expiration of this Agmamant, FRANCHISEE's right to use the Burger King Marks and the Burger King System shall terminate. FRANCHISEE shall identify himself as a Burger King fianchisae or ubli id ' _ ...n°t.thereafter p cly ant fy h~mself as a fOrmer Burger ~ng/ranchiese or use any of BKC's trade secrets, Promotional materials, the Burger King Marks or any mark confusingly similar, nor shall FRANCHISEE disclose any of BKC's trade secrets. Upon termination or expiration of this Agreement, FRANCHISEE will immediately return to BKC the MOD Manual loaned to him, together with all other material COntaining bade secrets. Q:FRAN~FRAN_AMI~FRAN24.SAM 101S5 BK //2080 ,r. · ! (2) FRANCHISEE grants to BKC, upon termination or expiration of this Agreement, the option to purchase ail usable paper goods, containers and printed menus beadng the Burger King Marks at FRANCHISEE's cost, and to purchase the restaurant equipment, flJrnlture, fixtures and signs at fair market value. (3) If the parties do not enter into a Successor Franchise Agreement, FRANCHISEE agrees to immediately upon termination or expiration of this Agreement, make such removals or changes in signs and the building as BKC shall request, so as to effectively distinguish the building and premises from its former appearance and from any other Burger King Restaurant. In the event FRANCHISEE fails to make the changes, FRANCHISEE consents to BKC entering the building and premises to make non-structural changes at FRANCHISEE'S expanse. (4) In the event of termination for any default of FRANCHISEE, any damage suffered by BKC shall be a lien in favor of BKC against the personal property, machinery, fixtures and equipment owned by FRANCHISEE on the premises at the time of default. (5) The foregoing shall be in addition to any other dghts and remedies of BKC that exist under statute, regulation or common law. 19. RESTRICTIVE COVENANT FRANCHISEE covenants and agrees that during the Term of this Agreement he will not own, operate or have any interest in any hamburger business except other franchised Burger King Resteurante. FRANCHISEE forther covenants and agrees that for a period of one (1) year after any sale, assignment, transfer, termination or expiration of this Agreement, FRANCHISEE will not own, operate or have any interest in any fast-food business, except other franchised Burger King Restaurants, either at or within two (2) miles of the Franchised Restaurant. 20. RESOLUTION OF DEVELOPMENT DISPUTES A. Non.Binding Mediation BKC and FRANCHISEE agree that they shell attempt to resolve any dispute ("Development Dispute") that arises out of a decision by BKC to develop or authorize development of a now restaurant ("Development Decision"), by negotiation between FRANCHISEE and representatives of BKC who have authority to settle the Development Dispute. The BKC representative shell be at a higher level of management than the parson with direct responsibility for the initial Development Decision. if the matter has not been resolved within thirty (:30) days of referral of the Development Dispute to the BKC representative for negotiation, BKC and FRANCHISEE shall attempt to settle the Development Dispute by non-binding mediation. The mediation procedure to be followed by the parties shall be set forth in BKC's then current Procedures for Resolving Development Disputes (the "Proceduras"). B. Binding Dlapute Reaolutlon The Procedures shall also set forth a binding dispute resolution process which may be initiated pursuant to the Procedures at the sole election of FRANCHISEE in the event the dispute is not resolved through the mediation process. Subject to modifications mede pursuant to the following paragraph, the Procedures shall remain valid and enforceable by FRANCHISEE and BKC for the term of this Agreement. C. Modification of Procedurea The terms and conditions of the Procedures shall not be materially modified by BKC without the express written approval of the Franchisee Advisory Council. BK//2080 ,. · ~ 22 :, ~-',i ~ D. Institution of Legal Proceedings FRANCHISEE shall not institute any legal or administrative proceeding for claims arising out of a Development Decision without first attempting to resolve the Development Dispute through negotiation and non-binding mediation. If the Development Dispute has not been resolved through negotiation or mediation pursuant to Paragraph 20.^ and FRANCHISEE has not timely elected the optional binding dispute resolution pursuant to Paragraph 20.8 above, either party may initiate lit gedon. 21. MISCELLANEOUS: GENERAL CONDITIONS A. Interpretation The Introduction shall be Considered a part of this Agreement. Paragraph captions ara used only for convenience and ara in no way to be construed as part of this Agreement or as a limitation of the scope of the particular paragraphs to which they refer. Words of any gender used in this Agreement shall include any other gender, and words in the singular shall include the plural, where the context requires. B. Non-Waiver The failure of BKC to exemise any right or option given to it under this Agreement, or to insist upon strict Compliance by FRANCHISEE with the terms and Conditions of this Agreement shall not Constitute a waiver of any terms or Conditions of this Agreement with respect fo any other or subsequent breach, nor a waiver by BKC of its right at any time thereafter to require exact and s~ct Compliance with the terms and Conditions of this Agreement. The rights or remedies set forth in this Agreement are in addition to any other rights or remedies which may be granted by law. C. Governing Law, Forum and Compltsnce (1) This Agraement shall beCome valid when executed and ac, ce ted b parties agree that it shall be deemed mede and ente -,,,,, ,, ,,,,, ~,_ ...... .P y BKC. The and Construed under and · red i,,,~ .. ,,. ,;~=u= or rmnaa ana shall be govemed ~n accordance with the laws of the State of Fiddda. (2) FRANCHISEE and BKC acknowledge and agree that the U.S. Dlethct Court for .the Southem Dletrict of Florida, or if such Court lacks jurisdiction, the 11th Judicia C rcuit (or its successor) m and for Dada County, Florida, shall be the venue and exclusive proper forum in which to adjudicate any case or controversy arising, either directly or indirectly, under or in Connection with this Franchise Agreement except to the extent otherwise provided in this Agreement and the parties further agree that, in the event of litigation adsing out of or in Connection with this Agreement in these Courts, they will not Contest or challenge the judediction or venue of these Courts. (3) Anything in this Agreement to the Contrary notwithstanding, FRANCHISEE shall COnduct his business in a lawful manner and faithfully comply with applicable laws or regulations of the United States and the state, city or other political subdivision in which the Franchised Restaurant is located. D. Severabllity BKC and FRANCHISEE agree that if any provision of this Agreement may be construed in two ways, one of which would render the Provision illegal or otherwise voidable or unenforceable and the other of which would render the provision valid and enforceable, such provision shall have the meaning which rendars it valid and enforceable. The language of all Provisions of this Agreement shall be construed according to its fair meaning and not stricby against BKC or FRANCHISEE. It ia the desire and intent of Q:FRAN~FRAN_AMI%FRAN24.SAM 10195 8K//2080 23 BKC and FRANCHISEE that the provisions of this me any Provision be invalid or Unenfo ....... Ag ment be enfo,,.=,~ ,-. ....... ,,-=,,u~e uncler Florida aw ~,-, .-,..-, ~"~."' ,~ L,~e 1UilaSt extant, and should Franchised Restaurant is located, the Provision shall be governed by the law of that stata. In the event , ,,,,, ,,~,,u uneer the laws of the stata where the any court shall determine that any provision in this ^graement is not enforceable as wdttan, BKC and FRANCHISEE agree that the Prevision shall be amended so permissible under the laws of the 'ud . · . . that it is enforceable · · fullest extent ^g--ment are severable a.d th,s ,e sought tha or unenforceable Provisions were not contained in the Agreement, and partially valid and -. u= mzerpreted and enforced as if a~ provisions of this completaly invalid provisions Shall be enforced to the extent that they are valid and enforceable enforceable E. Notices ' (1) ,aJI notices to BKC shall be in wdting and shall be delivered or sent by registered or certified ma/J, postage fully prepaid, addressed to it at its offices at P.O. Box 020783, Miami, Flor/da 33102-0783, Attention: Genera/ Counsel, or at such other address aa BKC shall from time to time designate Jn wdting. (2) All notices to FRANCHISEE shall be in writing and shall be hand delivered or sent by registarad or certified mail or telegraph, addressed to FRANCHISEE at the Franchised Restaurant or FRANCHISEE'S last designatad in writing mailing address. (3) Notices shall be deemed delivered on day after being deposited in the U.S. Mail. the earlier of actual receipt or the third (3rd) F. Liability of Multiple Franchleeea If FRANCHISEE consists of more than one person, each partner's liability and obligation under this Agreement shall be joint and Several. G. Modification This Agreement may only be modified or amended by FRANCHISEE. a wdttan document executed by BKC and H. Binding Effect This Agreement shall be binding Upon the paKdes, their heirs, executors, personal reprasentativea, successors or assigns. I. Survival Any Provisions of this Agraemen ' . . . Agreement shall surv/ve the tarmination ~rw,,h~i~c~h,.~i ~m__po_s~,.~a.n o. bhgation altar termination or · · · . ,,, ,~^p,,=uun or mia Agreement =.. ~- ,.. ~. expiration of this .... u~ glnnlrlg on the parties. J. Attorneys' Fees In any litigation to enforce the terms of this Agreement, all costs and all attorney's fees (including those incurred on appeal) incurred as a result of the legal action shall be paid to the prevailing party by the other party. K. Entire Agreement This Agreement, together with the F~nchise Application, Management Commitment Form, Capitalization Plan and Target Reservation Agreement submitted by FRANCHISEE to BKC upon which BKC is relying in granting this franchise, constitute the entire agreement of the parties and supersedes all prior negotiations, commitments, representations and undertakings of the parties with respect to the subject matter of this Agreement. BURGER KING CORPORATION Attest:~ WITNESS: ~ ~_ ~.?~ FRANCHISEE: Robert J. Russoli Russoli Q:FRAN~FRAN_AMI~FRAN24.SAM 10/95 2s HILARY SUNDAY Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. RUSSOLI ENTERPRISES, INC. ~ NO. 2001-2534 BURGER KING CORPORATION: Defendant : P-PLAINTIFF'S REPLY TO D,E, FENDANT 27. Denied. The allegations set forth in paragraph 27 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 28. Denied. The allegations set forth in paragraph 28 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 29. Denied. The allegations set forth in paragraph 29 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 30. Denied. The allegations set forth in paragraph 30 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied· 31. Denied. The allegations set forth in paragraph 31 constitute conclusions of law to which no response is required. To the extent that they are deemed to be avermen~ of fact, they are specifically denied. 32. Denied. The allegations set forth in paragraph 32 constitute conclusions of law to which no response is required. To the extent fi, at they are deemed to be averments of fact, they are specifically denied. 33. Denied. The allegations set forth in paragraph 33 constitute conclusions of law to which no response is reqnired. To the extent that they are deemed to be averments of fact, they are specifically denied. 34. Denied. The allegations set forth in paragraph 34 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 35. Denied. The allegations set forth in paragraph 35 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. WHEREFORE, Plaintiff respectfully requests judgment in her favor as set forth in Plaint/frs Complaint. Respectfully submitted, NESTICO & DRUBY, L.L.P. / , ~y..~_, , t ,- · - t. '~ b' Anthony J. fi/e~co, Esquire ~0 East C6ocola~ Avenue Hershey PA 17033 717-5~-~06 I.D. 5~68 CERTIFICATE OF SERVICE I, Anthony J. Nestico, Esquire, of the law firm of Nestico & Druby, L.L.P., hereby certify that on the 7th day of December, 2001, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Guy Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelplxia PA 19102-1983 ~nthony~. ~qest~'c:, Esqui.re ~0:5_&\LIAB\RGH\LLPG\83531 \RYM\I 4183~00180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaimiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : TO: PLAINTIFF You are hereby notified and required to file a written response to thc New Matter of Defendant to Plaintiffs Complaint within twenty (20) days from service hereof, or a default judgment may be filed against you. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATED: IZl ~0101 BY: /~{5~/t.~. ~jt~L/0 oLY. J~,~L_~ /Robert G. Hanna, .Ir., Esquire 4200 Crums Mill Road Suite B Harrisburg, PA 17112 LD. No. 17890 (717) 651-3515 Attorney for Defendants ~05_A\LI AB\R. GH\LLPO\83695'~RYM~ 14183~0180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : ANSWER WITH NEW MATTER ANSWER 1. Admitted. 2. Admitted. 3. It is admitted that Defendant Burger King Corporation is a corporation, but it is averred that it is a Florida corporation with a registered address through CTCORP System, 515 Market Street. Suite 1210, Philadelphia, Pennsylvania 19102. 4. Denied. Trebor Square, Ltd., a Pennsylvania Corporation, owns and operates the Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. Trebor Square, Ltd. maintains its corporate offices at 5002 Lenker Street, Aspen Building, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. Admitted. 6.. Denied. Answering Defendants have no firsthand knowledge of the accident described in the instant Complaint or of Plaintiff Hilary Sunday's alleged presence at the Burger King restaurant and so deny these averments pursuant to Rule 1029(e). 7. Denied. Answering Defendants have no firsthand knowledge of the accident described in the instant Complaint or of Plaintiff Hilary Sunday's alleged presence at the Burger King restaurant and so deny these averments pursuant to Rule 1029(e). 8. Denied pursuant to 1029(e). 9. Denied pursuant to 1029(e). 10. Denied pursuant to 1029(e). 11. Denied pursuant to 1029(e). 12. Denied pursuant to 1029(e). COUNT 1- NEGLIGENCE HILARY SUNDAY v. RUSSOLI ENTERPRISES~ INC. 13. The admissions or denials of the proceeding paragraphs are incorporated by reference herein. 14. Denied pursuant to 1029(e) and for the following additional reasons. Defendant Russoli Enterprises, Inc. neither owns nor operates the Burger King restaurant located at 950 East High Street, Carlisle, Pa 17013. Trebor Square. Ltd., a Pennsylvania Corporation, owns and operates the aforesaid Burger King restaurant. 15. Denied pursuant to Rule 1029(e). 16. Denied pumuant to Rule 1029(e). 17. Denied pursuant to Rule 1029(e). WHEREFORE, Defendant Russoli Enterprises, Inc. denies any and all liability to Plaintiff and demands judgment in its favor. COUNT II- NEGLIGENCE HILARY SUNDAY v. BURGER KING CORPORATION 18. The admissions or denials of 1-17 are incorporated herein by reference. 19. Denied pursuant to Rule 1029(e). 20. Denied pursuant to Rule 1029(e). 21. Denied pursuant to Rule 1029(e). 22. Denied pursuant to Rule 1029(e). WHEREFORE, Defendant Burger King Corporation denies any and all liability to Plaintiff and demands judgment in its favor together with costs and counsel fees. NEW MATTER-AFFIRMATIVE DEFENSES 3 23. Plaintiffhas failed to state a claim upon which relief can be granted. 24. Defendant raises ail defenses available under the Pennsylvania Comparative Negligence Act. 25. Plaintiffassumed the risk of harm. WHEREFORE, Defendants deny any and all liability to Plaintiff and demand judgment in their favor together with costs and counsel fees. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATED: '- BY: ~R~er tv~. H~, ~r., ~'sq ui~ 4200 Crums Mill Road Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants 4 Dec-O7-O't 10:'-47A Ru,=sol4 E:n~,mY"F~v'''t'=m~= I 717 763 7172 Po07 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : Certificate of Service I hereby ce~ify that I have served upon all persons listed below a true and correct copy of the foregoing document via U.S. mail, postage prepaid this I~ day of ~ (~/'1o~(~1/, 2001. Anthony J. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, Pa 17033 · ~H~~L L. MINNICH ~05_A\LIAB\RGH~'ORR~83186\RYM\14182X50000 SHERIFF,s RETURN _ NOT SERVED CASE NO: 2001-02534 p COMMONWEALTH OF PENNSYLVANIA COUNTy OF CUMBERLAND VS ~' ~, who being duly SWorn according to law, says, that he made a diligent search and inquiry for the Within named /LDD,L DEF o wit: lOCate Him in h~s ba~ but was COMPLAINT & NOTIc~ ' ' ' ~=~ore returns the the Within named ADD,L DEFENDANT NOT SERVED , as to , RUSSOLi ROBERT ~ J UNABLE TO SERVE PRIOR TO EXPIRATION. Sheriff,s Costs: Docketing Service 18.00 So ans~e~rS: Affidavit 19.50 Surcharge .00 10.00 __.0._~Q~0 SHERIFF OF CUMBERLA/~D COUNTy 47.50 SWEENEY & SHEEHAN 01/02/2002 Sworn and subscribed to before me this ~ day of ~ SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street Nineteenth Floor Philadelphia. PA 19102 Attorney for: Defendant, (215) 563-9811 Burger King Corporation HILARY SUNDAY : COURT OF COMMON PLEAS : CUMBERLAND COUNTY RUSSOLI ENTERPRISES, INC., and : BURGER KING CORPORATION : ROBERT J. RUSSOLI : 9 King Arms : Mechanicsburg, PA : ROBERT C. RUSSOLI : 9 King Arms : Mechanicsburg, PA : : GRADY CORPORATION : 9 King Arms : Mechanicsburg, PA : NO. 2001-2534 PRAECIPE TO Ri~.INSTATE TO THE PROTHONOTARY: Kindly reinstate the Writ joining Robert J. Russoli, Robert C. Russoli and Grady Corporation as Additional Defendants in the above-captioned matter. SWEENEY & SHEEHAN .~uy Mercogliano ILq[ £'Ill Attorney for Defendant, DATE: Burger King Corporation HILARY SUNDAY : COURT OF COMMON PLEAS 260 North College Street, : CUMBERLAND COUNTY, Palmyra, Pennsylvania 17078 : PENNSYLVANIA Pl~iniiff : v. : CIVIL ACTION - LAW : NO. 2001-2534 TREBOR SQUARE LTD. : 5002 Lenker Street, : A~pen Building Mechauicsburg, : Pennsylvania 17055 : Defendant : JURY TRIAL DEMANDED & : BURGER KING CORPORATION : CT Corp. System : 1515 Market Street, Suite 1210 : Philadelphia, PA 19102 : Defendant : AMENDED COMPLAINT AND NOW comes the Plaintiff, HILARY SUNDAY, by and though her attorneys, NESTICO & DRUBY, L.L.P., and does respectfully represent the following: 1. The Plaintiff, HILARY SUNDAY, is an adult individual who currently resides at 260 North College Street, Palmyra, Lebanon County, Pennsylvania 17078. 2. The Defendant, TREBOR SQUARE LTD., is a Pennsylvania corporation with a business adch'ess of 5002 Lenker Street, Aspen Building, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. The Defendant, BURGER ICING CORPORATION, is a Pennsylvania co~orat~on with a registered address of 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. 4. It is believed and averred that the Defendant, TREBOR SQUARE LTD., owns and operates a Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 5. It is believed and averred that the Defendant, BURGER KING CORPORATION, is the Franchisor of the Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 6. The facts hereinafter set forth took place on November 2, 2000, at the Burger I~ing restaurant located at 950 East High Street, Carlisle, Cumberland County~ Pennsylvania 17013. 7. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, stopped at the Burger King restaurant to eat breakfast. She ordered a sausage sandwich, hash brown and a soda. 8. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, bit into something metallic in the sausage sandwich. 9. After looking at the sandwich, she saw a piece of metal hanging from the sandwich. 10. Plaintiff inadvertently ingested a piece of metal that was contained in the breakfast sandwich, prior to discovering the metal. ! 1. As the proximate result of the negligence of Defendants, Plaintiff, HILARY SUNDAY, suffered serious injuries, including but not limited to the following: (a) Abdominal pain; (b) Constipation; (c) Epigastic pain; (d) Nausea; (e) Shock to nerves and nervous system; (f) Emotional distress; and (g) Pain and suffering. 12. As a result of the negligence of Defendants, Plaintiff required significant medical treatment, including but not limited to: (a) Several emergency room examinations; (b) An Esophagogastroduodenoscopy; (c) Six (6) Enemas; and (d) Multiple x-rays COUNT I-NEGLIP-ENCE HILARY SUNDAY V. Tn.~,P~)R SQUARE LTD 13. The foregoing paragraphs of this Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 14. The aforesaid incident was a direct and proximate result of the negligence, carelessness and recklessness of the Defendant, RUSSOLI ENTERPRISES, INC., in the following, particularly: (a) In buying supplies or food that were contaminated with metal; (b) In not thoroughly inspecting the supplies and food that they offered for sale to the public; (c) In serving a breakfast sandwich contaminated with metal; (d) In not warning the Plaintiff, HILARY SUNDAY, that the breakfast sandwich she ordered was contaminated with metal; (e) In hiring employees who are not competent enough to notice that there was metal in the breakfast sandwich; (f) In not s~fficiently training their employees to properly prepare, cook and/or inspect the food served so that there would be no metal in the breakfast sandwich; (g) In not sufficiently supervising their employees and allowing them to serve a breakfast sandwich that contained metal; (h) In allowing their employees to serve a breakfast sandwich that contained metal; (i) In failing to follow Heath Department guidelines; (j) In fziling to maintain a clean work environment; and (k) In not having a policy or procedure, or in foiling to foUow a policy or procedure, for inspections that could have prevented the food from being contaminated. 15. As a direct and proximate result of her aforesaid injuries, Plaintiff, HILARY SUNDAY, has undergone and in the future will undergo great pain and suffering, embarrassment and humiliation for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY has and/or may in the future incur expenses for lost wages, medical treatment and rehabilitation for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY, has sustained a diminution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against the Defendants in an amount in excess of the limit set forth for mandatory arbitration. COUNT II - NEGLIGENCE HILARY SUNDAY V. BURGER KING CORPORATION 18. The forgoing numbered paragraphs are incorporated herein by reference. 19. The aforesaid incident was a direct and proximate result of the negligence of Defendant, BURGER KING CORPORATION, in the following, particularly: (a) In franchising their restaurant to a corporation that operated their business in a careless, reckless and negligent manner, as set forth elsewhere in this complaint; (b) In franchising their restaurant to a corporation that bought supplies that were contaminated with metal; (c) In franchising their restaurant to a corporation that did not thoroughly inspect the supplies that they bought; (d) In franchising their restaurant to a corporation that did not warn the Plah~tiff, HILARY SUNDAY, that the breakfast sandwich she ordered was contaminated; (e) In franchising their restaurant to a corporation that hired employees that are not competent enough to notice that there was metal in the breakfast sandwich; (f) In franchising their restaurant to a corporation that did not sufficiently train their employees to know that there should not be metal in the breakfast sandwich; (g) In franchising their restaurant to a corporation that did not sufficiently supervise their employees and allow them to serve a breakfast sandwich that contained metal; (h) In franchising their restaurant to a corporation that allowed their employees to serve a breakfast sandwich that contained metal; (i) In franchising their restaurant to a corporation that did not maintain a clean environment in which to prepare and serve food to the public; (j) In franchising their restaurant to a corporation that did not have a policy or procedure, or one that failed to follow a policy or procedure, for inspections that could have prevented the food from being contaminated; Iii) In franchising their restaurant to a corporation that did not comply with applicable health regulations; (1) In franchising their restaurant to a corporation that did not have inspections that could have prevented the food from being contaminated. 20. As a direct and proximate result of her aforesaid injuries, Plaintiff, HILARY SUNDAY, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 21. As a further result of the aforesaid injuries, Piti-tiff, HILARY SUNDAY has and]or may in the future incur expenses for lost wages, medical treatment and rehabilitation for which damages are claimed. 22. As a further result of the aforesaid injuries, Plain~ HILARY SUNDAY, has sustained a diminution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor. and against Defendants in an amount that exceeds the limit set forth in Cumberland County for mandatory arbitration. COUNT III-BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY HILARY SUNDAY V. BURGER KING CORPORATION & TREBOR SQUARE LTD. 23. The forgoing numbered paragraphs are incorporated herein by reference. 24. Pennsylvania Law imposes an implied warrant of merchantability with respect to food sold for public consumption. 25. The implied warranty of merchantability requires that food sold for puhlic consumption at least: (a) pass without objection in the trade; (b) in the case of fungible goods, be of fair average quality within the description; (c) be fit for the ordinary purposes for which such goods are used; (d) be adequately contained, packaged, and labeled as the agreement may require; 26. The Defendants have breached the implied warranty of merchantability in that: (a) the breakfast sandwich could not pass without objection in the trade; (b) the hi'eakfast sandwich was not of fair average quality; (c) the breakfast sandwich was not fit for the ordinary purposes for which such goods are used; (d) the breakfast sandwich was not adequately contained, packaged or labeled. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against Defendants in an amount that exceeds the limit set forth in Cumberland County for mandatory arbitration. Respectfully Submitted, NESTICO & DRUBY, L.L.P. *n~ony ~?,~s~'~o, ~.s~."'-" Attorney I~D."No. 58868-~ 840 East Chocola~ Avenue Hershey, Pennsylv~ia 17033 (717) 533-5406 Date: /.~, ~/~ ~ (71~ 533-5717 X05_A\LiAB~.GH\LLPG~8383 I\RYM\I 4183~00 ] 80 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : TO: PLAINTIlrF You are hereby notified and required to file a written response to the New Matter of Defendant to Plaintiffs Complaint within twenty (20) days from service hereof, or a default judgment may be filed against you. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATED: 2.._. ~--I ~ ~ ca~ Z. BY: RobertG. Hanna, Jr., Esquire ~ 4200 Crums Mill Road ~} Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : ANSWER WITI-I NEW MATTER 1. Admitted. 2. Admitted. 3. It is admitted that Defendant Burger King Corporation is a corporation, but it is averred that it is a Florida corporation with a registered address through CTCORP System, 515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. 4. Admitted. 5. Admitted. 6. Denied. Answering Defendants have no firsthand knowledge of the accident described in the instant Complaint or of PlaintiffHilary Sunday's alleged presence at the Burger King restaurant and so deny these averments pursuant to Rule 1029(e). 7. Denied. Answering Defendants have no firsthand knowledge of the accident described in the instant Complaint or of Plaintiff Hilary Sunday's alleged presence at the Burger King restaurant and so deny these averments pursuant to Rule 1029(e). 8. Denied pursuant to 1029(e). 9. Denied pursuant to 1029(e). 10. Denied pursuant to 1029(e). 11. Denied pursuant to 1029(e). 12. Denied pursuant to 1029(e). COUNT I- NEGLIGENCE HILARY SUNDAY v. RUSSOLI ENTERPRISES. INC. 13. The admissions or denials of the proceeding paragraphs are incorporated by reference herein. 14. Denied pursuant to 1029(e). 15. Denied pursuant to Rule 1029(e). 16. Denied pursuant to Rule 1029(e). 17. Denied pursuant to Rule 1029(e). WHEREFORE, Defendant Russoli Enterprises, Inc. denies any and all liability to Plaintiff and demands judgment in its favor. COUNT II- NEGLIGENCE }IILARY SUNDAY v. BURGER KING CORPORATION 18. The admissions or denials of 1-17 are incorporated herein by reference. 19. Denied pursuant to Rule 1029(e). 20. Denied pursuant to Rule 1029(e). 21. Denied pursuant to Rule 1029(e). 22. Denied pursuant to Rule 1029(e). WHEREFORE, Defendant Burger King Corporation denies any and all liability to Plaintiffand demands judgment in its favor together with costs and counsel fees. NEW MATTER-AFFIRMATIVE DEFENSES 23. Plaintiffhas failed to state a claim upon which relief can be granted. 24. Defendant raises all defenses available under the Pennsylvania Comparative Negligence Act. 25. Plaintiffassumed the risk of harm. WHEREFORE, Defendants deny any and all liability to Plaintiff and demand judgment in their favor together with costs and counsel fees. Respectfully submitted, MARSHALL, DENNEHEY, WARNER. COLEMAN & GOGGIN DATED: 2_ -- t "~ .- ~..z.,'~'z.... Robert G. Hanna, Jr., Es/~uire 4200 Crums Mill Road ' Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants 4 VERIFICATION 1, ROBERT J. RUSSOLI, on behalf of Defendant, Trebor Square, Ltd., and Burger King Corporate, verify that the facts set forth in thc Answer are true to the best of my knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. ROBERT J. RUSSOLI DATE: ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : Certificate of Service I hereby certify that I have served upon all persons listed below a true and correct copy of the foregoing document via U.S. mail, postage prepaid this ~-'Z. day of /-~~01. Anthony J. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, Pa 17033 RACHAEL L. MINNICH ~05_A\LIAB\RG H~CO RR~83186\RYM\14182x50000 SHERIFF'S RETURN - NOT SERVED CA~E NO: 2001-02534 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SUNDAY HILARY VS BURGER KING CORP ET AL R. Thomas Kline , Sheriff , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named ~_DD'L DEFENDANT, to wit: RUSSOLI ROBERT J but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE NOT SERVED , as to the within named ADD'L DEFENDANT, RUSSOLI ROBERT J UNABLE TO SERVE PRIOR TO EXPIRATION. Sheriff's Costs: So answe~r~: Docketing 18 00 ,,/", ............. .... "-... Service 15 18 .~...~. -~'~...-. Affidavit 00 ~. THOMAS KLINE Surcharge 10 00 SHERIFF OF CUMBERLAND COUNTY 00 43 18 SWEENEY & SHEEHAN 02/22/2002 Sworn and subscribed to before me this ~7~. day of ~,~c~..,~ SHERIFF'S RETURN - NOT SERVED C~SE NO: 2001-02534 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SUNDAYHILARY VS BURGER KING CORP ET AL R. Thomas Kline , Sheriff , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named ADD'L DEFENDANT, to wit: RUSSOLI ROBERT C but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE NOT SERVED , as to the within named ADD'L DEFENDANT, RUSSOLI ROBERT C UNABLE TO SERVE PRIOR TO EXPIRATION. Sheriff's Costs: So answers: Docketing 6.00 Service . 00 ~ '" '~'3~'" "-"'~..' .../ Affidavit .00 R. THOMAS KLINE" Surcharge 10.00 SHERIFF OF CUMBERLAND COUNTY .00 16.00 SWEENEY & SHEEHAN 02/22/2002 Sworn and subscribed to before me this U Prot hbn~ta~ry SHERIFF'S RETURN - REGULAR CAS~ NO: 2001-02534 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLA/~D SUNDAYHILA. Ry VS BURGER KING CORP ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUSSOLI ROBERT J the ADD'L DEFENDANT, at 1325:00 HOURS, on the 20th day of March , 2002 at 950 EAST HIGH STREET CARLISLE, PA 17013 by handing to TERRI LEGGORE GENERAL MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directin9 Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 3.45 ~.~- . Affidavit .00 ,~ Surcharge 10.00 R. Thomas Kline .00 31.45 03/21/2002 SWEENEY & Sworn and Subscribed to before By: me this ¥ ~ day of ! D~puty Sheriff ~ ~ 2., A.D. ~r6thoh6~ry ' SHERIFF'S RETURN - REGULAR · CARE NO: 2001-02534 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUNDAYHILARY VS BURGER KING CORP ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUSSOLI ROBERT C the ADD'L DEFENDANT, at 1325:00 HOURS, on the 20th day of March , 2002 at 950 EAST HIGH STREET CARLISLE, PA 17013 by handing to TERRI LEGGORE GENERAL MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 .~?.~.... '......~:' Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 03/21/2002 SWEENEY & SHEEHAN Sworn and Subscribed to before By: ~e~~/~ me this g~ day of iff /P~othonotary ' SHERIFF' S RETURN - REGULAR CASE NO: 2001-02534 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUNDAY HI LARY VS BURGER KING CORP ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GRADY CORPORATION the A_DD'L DEFENDANT, at 1325:00 HOURS, on the 20th day of March , 2002 at 950 EAST HIGH STREET CARLISLE, PA 10713 by handing to TERRI LEGGORE GENERAL MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: So Answers Docketing 6.00 Service .00 .-w~~- .... Affidavit .00 "~ " Surcharge 10.00 R. Thomas Kline .00 16.00 03/21/2002 SWEENEY & SHEEHAN Sworn and Subscribed to before By: me this y~- day of ~)~,. '~ ~ZOz~ 2., A.D. · l~rothonotary ' Cumberland County, ss: The Commonwealth of Pennsylvania to ~obere J. Russol±, Rnl~,rt C. l~,-~,'~l i, (N~me ~ ~kio~l ~e~ant) ~ ~y Co~ati~ You are notified that ~er K~O ~ati~ has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date November 28. 2001 c~,~o R_ L~..; Rober~ J. ~ssoli 9 K~ ~ ~c~ics~, PA Robert J. Russoli Robert C. Russoli Grady Corporati~ c/o BurDer King 950 East High Street Carlisle, PA 17013 SWEENEY & SHEEHAN By: Guy Mercogliano Identification No. 39766 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for: Defendant, (215) 563-9811 Burger King Corporation HILARY SUNDAY COURT OF COMMON PLEAS CUMBERLAND COUNTY V. . RUSSOLI ENTERPRISES, INC. and : BURGER KING CORPORATION : . V. ' ROBERT J. RUSSOLI 9 Kings Arms Mechanicsburg, PA ROBERT C. RUSSOLI 9 Kings Arms Mechanicsburg, PA GRADY CORPORATION 9 Kings Arms Mechanicsburg, PA NO. 2001-2534 PRAECIPE TO THE PROTHONOTARY: Kindly issue a Writ joining Robert J. Russoli, Robert C. Russoli and Grady Corporation as Additional Defendants ir~ the above-captioned matter. SWEENEY & SHEEHAN By: Gu~l~lercogliano Attorney for Defendant, DATE: Burger King Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 . TREBOR SQUARE, LTD., and BURGER : KING, CORPORATION, : Defendants It is Stipulated by and between the parties that Defendant, Trebor Square, Ltd., should be substituted for Defendant, Russoli Enterprises, Inc., and the caption amended to reflect the substitution. It is further Stipulated that the Amended Complaint which refers to Trebor Square, Ltd., as the defendant shall hereafter be referred to as the Second Amended Complaint. ANTH ~C~ J. NESTIC~, ~SQUIRE ROBERT O. HANNA. Jla. ~QUIRE NESTICO & DRUBY, {LL'P Marshall, Dennehey. Wamer,~ Attorney I.D. 58868 Coleman & Goggin 840 East Chocolate Avenue I.D. No. 17890 Hershey, PA 17033 4200 Crams Mill Road ATTORNEY FOR PLAINTIFF Suite B Harrisburg. PA 17112 ATTORNEY FOR DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : TREBOR SQUARE, LTD., and BURGER : KING, CORPORATION, : Defendants ENTRY OF APPEARANCE TO THE PROTHONTARY: Kindly enter the appearance of Robert G. Hanna, Jr., Esquire on behalf of the following Defendants: Trebor Square. Ltd., and Burger King Corporation in the above-captioned case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATED: ~- "/~ -. '2 c e:.~ ' Robert G. Hanna, Jr., Esqt}ire 4200 Crums Mill Road Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street Nineteenth Floor Philadelphia, PA 19102 Attorney for: Defendant, (215) 563-9811 Burger King Corporation HILARY SUNDAY : COURT OF COMMON PLEAS : CUMBERLAND COUNTY V. ~ . RUSSOLI ENTERPRISES, INC., and : BURGER KING CORPORATION : . V. ~ : ROBERT J'. RUSSOLI : c/o Burger King : 950 East High Street : Carlisle, PA 17013 : : ROBERT C. RUSSOLI : c/o Burger King : 950 East High Street : Carlisle, PA 17013 : : GRADY CORPORATION : c/o Burger King : 950 East High Street : Carlisle, PA 17013 : NO. 2001-2534 PRAECIPE TO REINSTATE TO THE PROTHONOTARY: Kindly reinstate the Writ joining Robert J. Russoli, Robert C. Russoli and Grady Corporation as Additional Defendants in the above-captioned matter. SWEENEY & SHEEHAN Guy Mercogliano Attorney for Defendant, ~ll~l 0~, Burger King Corporation DATE: HILARY SUNDAY COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : TREBOR SQUARE, LTD. and NO. 2001-2534 BURGER KING CORPORATION: Defendants PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT TO PLAINTIFFF'S AMENDED COMPLAINT 23. Denied. The allegations set forth in paragraph 23 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 24. Denied. The allegations set forth in paragraph 24 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 25. Denied. The allegations set forth in paragraph 25 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. VVHEREFORE, Plaintiff respectfully requests judgment in her favor as set forth in Plaintiffs Complaint. Respectfully submitted, NESTICO & DRUBY, I~.L.P. Anthony rico, Esquire Attorney I~) No. 58868 840 East Chocolate Avenue Hershey PA 17033 (717) 533-5406 (717) 533-3717 Attorney for Plaintiff VERIFICATION Anthony J. Nestico, Esquire, hereby states that he is the attorney for the Plaintiff, Hilary Sunday, and is authorized to make this Verification on her behalf, and as such, states the facts set fort in the foregoing Plaintiff's Answer to New Matter of Defendant to Plaintiff's Complaint are true and correct to the best of his knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. ANTHON~ J. NESTICO DATED: July._~, 2002 .CERTIFICATE OF SERVlCF I, Anthony J. Nestico, of the law firm of Nestico & Druby, L.L.P., hereby certify that on the ~ day of July, 2002, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Robert G. Hanna, Jr., Esquire Marshall, Dennehy, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17110 HIL^RY SUNDAY : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RUSSOLI ENTERPRISES, INC. : NO. 2001-2534 BURGER KING CORPORATION: Defendant : PLAINTIFF~-~ REPLY TO NEW MATTER And now, the Plaintiff by and through her undersigned legal counsel files this Reply to New Matter and avers and support thereof the following: 23. Denied. The allegations set forth in Paragraph 23 constitute conclusions of law to which no response is required. To the extent that they are deemed to be averments of fact, they are specifically denied. 24. No response required as this is a reservation of Defense's available under the Pennsylvania Comparative Negligence Act. To the extent that a response is deemed necessary, the averments are specifically denied. 25. Denied. The averments set forth in Paragraph 25 constitute a conclusion of lam, to which no response is required. To the extent that they_ are deemed averments of fact, they are specifically denied. Wherefore, Plaintiff respectfully requests judgment in her favor as set forth in Plaintiff's Complaint. Respectfully submitted, NESTICO & ._DJP~UBY, L.L.P. By ^ntl~ony~s{ico, Esquire I. D. 840 East Chocolate Avenue Hershey, PA 17033 717-533-5406 717-533-5717 (Fax) VERIFICATION Anthony J. Nestico, Esquire, hereby states that he is the attorney for the Plaintiff, Hilary Sunday, and is authorized to make this Verification on her behalf, and as such, states the facts set fort in the foregoing Plaintiff's Answer to New Matter of Defendant to Plaintiff's Complaint are true and correct to the best of his knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. ANTHOI , J. NESTICO DATED: July ..~, 2002 CERTIFICATE OF SERVICE th . Nestico, of the law firm of Nestico & Druby, L.L.P., hereby certify that oi'thAnee _ ~)J. day of july, 2002, a copy of the foregoingdOcument was sent via First Class U.S. Mail, postage paid, to the following'. Robert G. Hanna, Jr., Esquire Marshall, Dennehy, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17110 Antho~J~. Nestico, Esquir HILARY SUNDAY COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V, TREBOR SQUARE, LTD. and NO. 2001-2534 BURGER KING CORPORATION: Defendants NOTICE TO PLEAD TO: Defendants You are hereby notified to plead to the enclosed Motion to Compel within twenty (20) days from service hereof or a default of judgment may be entered against you. NESTICO & DRUBY, LLP/ ~"~t hony ~J.~N estico, Esquire Attomey~/l.D. No. 58868 840 East Chocolate Avenue Hershey, Pennsylvania 17033 (717) 533-5406 Dated: "~ '- ~ I-'0~'"~' (717) 533-5717 Attorney for Plaintiff HILARY SUNDAY COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TREBOR SQUARE, LTD. and NO. 2001-2534 BURGER KING CORPORATION: Defendants PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO RESPOND TO PLAINTIFF'S DISCOVERY AND NOW, comes the Plaintiff, by and through her undersigned attorneys, Nestico & Druby, L.L.P., and moves this Honorable Court pursuant to Pa. R.C.P. 4019 to enter an Order compelling Defendants to provide full and complete answers to Plaintiff's Interrogatories for the reasons stated below. 1. On April 30, 2001, Plaintiff began this action by a Praecipe for Writ of Summons. 2. On or about October 15, 2001, Plaintiff served upon the Defendants a Complaint, Interrogatories and Request for Production of Documents. On January 28, 2002, Plaintiff filed an Amended Complaint. 3. On February 25, 2002, Plaintiff served upon the Defendants, Interrogatories. The Interrogatories are limited in number, inquiring into recognized areas of discovery which call for items which may lead to the discovery of admissible evidence. (See Plaintiff's Interrogatories attached hereto as Exhibit "A") 4. On April 5, 2002, Plaintiff demanded Answers to said interrogatories. (Exhibit ~B~) 5. On April 24, 2002, Plaintiff demanded answers to interrogatories to no avail. (Exhibit "C"). 6. On June 21, 2002, Plaintiff again demanded answers to interrogatories to no avail. (Exhibit"D"). 7. Plaintiff cannot properly prepare the prosecution of this action without the information requested of the Defendants. Since Plaintiff's requests for Interrogatories address issues which are in dispute in this case and cover other well-recognized areas of discovery, Defendants should be compelled to respond substantively to the Interrogatories. 8. Due to Defendants' failure to provide the information, documents and other things requested, it is appropriate for an Order to be issued requiring Defendants to comply fully with the discovery requests or to suffer sanctions for failure to comply, all pursuant to Pa. R.C.P. 4019 and other applicable law. WHEREFORE, Plaintiff respectfully requests that this Honorable Court issue an Order requiring the Defendants to answer fully and completely Plaintiff's Interrogatories within twenty (20) days of the Order or suffer further sanctions upon application to the Court. Respectfully submitted, NESTICO & DRUBY, L.L.P. Anthony J. ~, Esq"uire Attorney IEFNo?58868 840 East Chocolate Avenue Hershey PA 17033 (717) 533-5406 (717) 533-3717 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Anthony J. Nestico, of the law firm of Nestico & Druby, L.L.P., hereby certify that on the day of July, 2002, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Robert G. Hanna, Jr., Esquire Marshall, Dennehy, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17110 ' J.~e~stico, Esquire Exhibit A W 840 East Chocolale Avenue, Hershey, PA 17033-1213 Phone (717) 533.5406 Fax (717) 533-5717 www.nkd.baweb COm February 25, 2002 Robert G. Hanna, Jr., Esquire Marshall Dennehy Warner Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg PA 17110 RE: Sunday v. Burger King Corp., et al Dear Mr. Hanna: Enclosed please find lnr~rrogatorles for response by your client. Thank you for your courtesy and atten[ion to this matter. Very truly yours, NESTICO & DRUBY, L.L.P. I Maura B. Mundy, E~cLuire .'riSS L[22202 Hallllll HILARY SUNDAY : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA .' V. RUSSOLI ENTERPRISES, INC. NO. 2001-2534 BURGER KING CORPORATION Defendant : PLAINTIFF'S INTERROGATORIES TO DEI"i/NDAN-i Plaintiff through her undersigned attorney, requests Defendant to answer under oath the following interrogatories within thirty (30) days from service thereof in accordance with PA R.C.P. Nos. 4005 and 4006. These interrogatories are deemed to be continuing to the extent provided in PA. R.C.P. No. 40-07.4: DEFINITIONS: A. The term "product" as used herein refers to the breakfast sandwich prepared, served and/or sold by the Defendant on November 2, 2000, which is the subject matter of this action. INTERROGATORIES: 1. Is your name correctly stated in this complaint filed in this matter? 2. If not, then state the correct way that you should be designated as a party Defendant: ' a. On November 2, 2000. b. At the time of answering these interrogatories. 3. Please identify each ingredient used in the preparation of this product and, for each ingredient state: a. date it was obtained; b. person from whom it was obtained; c. quantity obtained on that date; d. type, size and description of the container(s) in which it was delivered; e. the location at which it was stored. 4. Please state the name address and job title of each person who assisted in the preparation of the product. 5. Did any accident, explosion, spillings, breakage or other unusual event occur during the preparation of the product? 6. If you answered the preceding interrogatory in the affirmative, please st,~te: a. a description of the event and of the substance that exploded, spilled and/or was broken. b. Location where the event occurred; c. Whether an attempt was made to determine if any foreign object, including metal, had found their way into the product and,'if so, the method used to make such determination. 7. Did you or any of your employees on date of purchase or consumption, or before or thereafter, lear,1 of the presence of any foreign objects, including metal in the product? 8. If you answered the preceding interrogatory ill the affirmative, please state: a. date and time such infi~rmation was learned; b. nature of foreign object; c. name and address of each person providing such ilxformation; d. ~ame m~d address of each person who received such information. ~. Did you o1' any Of your employees ]lave knowledge of tile presence of any foreign bodies, i,~clt~ding metal, in the product at the time plaintiff was served and/t'~r purchased tile product. 10. If you answered the preceding interrogatory itl tile affirmative, please state: a. name and address of each person who had such knowledge; b. nature of foreign object; c. why such product was not discarded. 11. Do you contend that any ingredient used in the preparation of the oroduct · ~ · plamt~t contained foreign ~bjects includin,~ meta~ ~ ,~-- -: - ~. , . served to '12.If you answered the pr~eding interrogatory in the affirmative, please state: a. each and every fact which supports your contention; b. name and address of each person vou content is legally responsible for plaintiff's injuries and damages. ' ' 13. Did yo.u or any of your employt~,s receive any written guarantee or warranty h'om the manufacture, producer or vendor that the ingredients used in the preparatiun of the product were who eSOllle~ 14. If you answered the preceding interrogatory in the affirmative, please state: '15. Di}l any customer, including the plaintiffs, on or a~ut November 2, 2~10, to roil or any ot your employees that the product contained foreign bodies, including metal. 16. If you answered the preceding interrogatory in the affirmative, please state: a. name and address of the complainant: b. name and address of the [~rson who received the complaint; c. the substance of the complaint, including nature of foreign bodies. 17. Was a health inspection made of your facility by any public agency during tilt. twelve (12) month period prior to November 2, 2000? 18. If you answered the preceding interrogatory in the affirmative, please state for each inspection. a. date of inspections; b. name and address of each iru~pector; c. name of the agency for which tile inspection was made; ti. whether a written report was made of such inspection and, if so, tile names and addresses of the persons in possession of same. 19. Were you ever cited and/or convicted for violation of any statute or ordinance pertaining to the sanitary conditions or operation of your facility? 20. If you answered the precedi.Lg interrogatory in the affirmative, please state: a. the number of such citations and/or convictions and the date of each; b. the particular violation involved in each such citation and/or conviction; c. the disposition o1~ each violation. 21. Was any analysis, test or inspection ever made of the product? 22. If w~u answered the preceding interrogatory in the affirmative, please state: a. date of such analysis, test or inspection; b. name, address and qualifications of the person who made such analysis, test or inspection. c. findings of such analysis test or i~Lspection. 4 23. Please state the names and addresses of all persons known to you or your attornev who actually observed or might have observed the incident that il the su'bject matter'of this action and, as to each such person their relationship, including employment, if any, to the defendant or its agents or employees. 24. For each person identified in the preceding interrogatory, please state their exact location, point of observation and activity at the time of the incident. 25. If you, your employees, attorney or his representatives are in possession of any photographs concerning the subject matter of this il~cident please state: a. number of photographs taken; b. date taken; c. name, address and occupation of the person who took the photographs; d. name and address of the person in possession of the photographs. 26. If you answered the preceding interrogatory in the affirmative, please state: a. name and address of each person to whom a statement was given; b. name and address of each person who gave a statement; c. date each statement was given; d. name and address of the person in possessinq of each statement. 27. At the time of this incident, or thereafter, did you or any of your employees or agents make any statements or have any convers~ation witl~ the'plaintiff? ~,. If vnu answered the preceding interrogatory in the affirmative, please state: ,~. nature and substance of such statements or conversations; b. name, address and job title of each person making such statement or having such conversation. 5 c. If any such statement or conversation was reduced to writing or recorded, name anti address of tile person in possession of such writing or recording. 29. Did you or any of your employees or agents investigate the happening of this incident? 30. If you answered the preceding interrogatory in tile affirmative, please state: a. name, address and job title of each person making such investigation; b. date such investigation was made; c. findings of such investigation; d. if a written report was prepared, ,lame and address of the person in possession of such report. 31. As to each person you intend to call as an expert witness at trial, please state: a. name and address of each such expert and the subject matter on which tile expert is expected to testify; b. for each such expert, have tile expert state the substance of the facts and opinions to which the expert is expected to testify' and summarize the grounds for each such opinion. c. Set forth the qualifications of each such expert. 32. Are you covered by any type of insurance, including any excess or umbrella insurance, in connection with this incident? 33. If you answered the preceding interrogatory ill tile affirmative, for each such policy ~f i nsu ra lee, please state: ' ,.1, Ilanle and address of tile insurance carrier: b. n,.'lnle ,lnd address of tile named insured; c. type of policy, policy number and effective dates; d. amount of coverage provided for injury to each person, for each occurrence and in the aggregate. Ma~undy, u' Hershey PA 17033 (717) 533-5406 (717) 533-5717 : II$$ 7 CERTIFICATE OF SERVICE I, Maura Mundy, Esquire, of the law firm of Nestico & Druby, L.L.P., hereby certify that on the day of February, 2002, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Trebor Square 5002 Lenker Street Aspen Building Mechanicsburg, PA 17055 Burger King Corporation CT Corp. System 1515 Market Street Suite 1210 Philadelphia, PA 19102 M~u.lra B. Mu~,. dy, l~s~, Exhibit B NESTICO & DRUBY LLP .4TT@PdVEI/~ATL.4W 840 East Chocolate Avenue, Hershey, PA 17033-1213 Phone (717) 533-5406 Fax (717) 533.5717 _ _w~v~v. _. 0_k d_. bawe b. C _o_m April 5, 2002 Robert G. Hanna, Jr., Esquire 4200 Crums Mill Road Harrisburg PA 17112 RE: Hilary Sunday v. Russoli Enterprises Inc. and Burger King Corp. Your File No. 1418300180025 Dear Mr. Hanna: Would you please forward Answers to my Interrogatories and Request for Production of Documents relative to the above-captioned matter at your earliest convenience? I would like so schedule depositions pursuant to the same within the near future. Thank you for your many courtesies. Very truly yours, NESTICO & DRUBY, L.L.P. Maura B. Mundy, E n'e :nss cc: Hilary Sunday Lt4402 NESTICO & DRUBY, LLP ATTORNEYS~ITLA~F 840 East Chocolate Avenue. 14ershey. PA 17033-1213 Phone (717) 533-5406 Fax (717) 53_t-5717 _w w~w: _n_k d~. haw gb.~cg.m_ April 24, 2002 Robert G. Hanna, Jr. Esquire Marshall Dennehy Warner Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17110 RE: Hilary Sunday Dear Mr. Hanna: Please allow this correspondence to memorialize our conversation relative to the above-captioned matter. I understand you are in the process of answering my interrogatories and requests for production forwarded to you on February 25, 2002. Of course, I am anxiously awaiting the same so I may proceed with depositions. In the interim, I am hoping we can settle this matter and I look forward to receiving a counter-offer to my demand. Thank you for your many courtesies. Ve,ry truly yours,, / b.~!/~,:~.. -, .' · M.au~ I~lundy Exhibit C Exhibit ?ICO & DRUBY, LLP TOlbVEY~ ,4 T ~ ~ 840 East Chocolate Avenue. Hershey'. PA 17033- Phone (717) ~33-~406 ~.nkd.bawcb.cum June 21, 2002 Robert G. Hanna, Jr., Esquire 4200 Crums Mill Road Harrisburg PA 17112 RE: Hilary Sunday v. Russoli Enterprises Inc. and Burger King Corp. Your File No. 1418300180025 Dear Bob: As you know, there appears to have been some confusion as to whether an offer to settle this ease had been made. Maura Mundy, an associate formerly of our office, believes that an offer had been made, but to date there has been no confirmation of it from the Defendants. Consequently, since no formal offer has been made, I would respectfully request that you respond to our discovery requests within the next two (2) weeks. We would like to move the matter forward and depose those individuals who are present at the restaurant on the day Ms. Sunday was injured as quickly as possible. I look forward to hearing from you at your earliest convenience. Very truly yours, NESTICO & DRUBY, L.L.P. By: Anthony j. Nes~o, Esquire :dkm AUG( ? 2Ol)Z HILARY SUNDAY COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TREBOR SQUARE, LTD. and NO. 2001-2534 BURGER KING CORPORATION: Defendants RULE TO SHOW CAUSF AND NOW, this o~ ~ day of /~f~ ,2002, upon consideration of Plaintiff's Motion to Compel, a Rule is hereby issued upon Defendants, Trebor Square, Ltd. and Burger King Corporation, to show cause, if any there be, why they should not be directed to provide full and complete answers to Plaintiff's Interrogatories within twenty (20) days of the date of this Order, with sanctions to be imposed upon Defendants, upon further application of the Plaintiff, for failure of Defendants to comply in full with this Order. BY THE COURT, ~0$_A\LIAB~R.G H\LLPG\103152',RYM\I 4183~00180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law v. : No. 2001-2534 : TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded KING CORPORATION, : Defendants : V. SYGMA : Additional Defendant : REPLY TO RULE TO SHOW CAUSE Attached as Exhibit "A" is a copy of Defendants' Answers to Plaintiffs Interrogatories. Resp~ctfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATED: ~' -~ T- O '~ BY: ~ '~' ~'--'/~ Robert G. Hanna, .Tr., Esquire 4200 Crums Mill Road Suite B Harrisburg, PA 17112 I.D. No. 17890 (717) 651-3515 Attorney for Defendants, Burger King Corp. and Trebor Square, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded KING CORPORATION, : Defendants : V. i SYGMA : Additional Defendant : ANSWERS TO INTERROGATORIES 1. Robert G. Hanna, .l'r. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road Harrisburg, PA 17112 Phone: 717-651-3515 2. (a) unknown Co) Sygma (c) unknown (d) The boxes ar~ stored in the walk-in freezer at the Burger King location where Hilary Sunday allegedly made her purchase. 3. Darlene Heberling. This interrogatory is difficult to answer because "the product" as disclosed by Plaintiff and Plaintiffs video is certainly not the normal way the product would be preparad for sale. The answer to this interrogatory should not be construed as an admission that any employee of the Defendants prepared the particular product in the form as depicted by the Plaintiff. 4. To be supplied. 5. No. 6. N/A 7. Defendants' first knowledge of them being anything allegedly wrong with his product was a telephone call from Plaintiffs father which is believed to have taken place on the date of the alleged incident. 8. See answer to no. 7. 9. No. 10. N/A 11. No, but if there was foreign object it would have been in the egg portion of the sandwich which comes to the store in a frozen box and is prepared by or at the direction of the supplier, Sygma. The egg is pre-cooked and then frozen by the supplier. Essentially what the Burger King location does is to microwave the product and then serve it. 12. See the answer to no. i 1. We do not know the name and address of any person who is legally responsible to the Plaintiff. We do contend that the supplier, Sygma Corporation is responsible for Piaintiffif, in fact, the foreign object was in its product and the product delivered to our store in that fashion. 13. No. 14. N/A 15. No. We were not permitted to speak with Plaintiffon that date. 16. N/A i 7. Yes. They made an unannounced inspection. 18. To be supplied. 19. No. 20. No. 21. No because Plaintiffwould not allow us test or inspect the product. 22. No. 23. Darlene Heberling. Assuming the time-frame as reported by Plaintiff. 24. This interrogatory with the precision that it calls for but, generally, the preparation of the pwduct (or at least similar products) took place in the kitchen. 25. The only photographs that we have are the photographs taken by or at the direction of Plaintiff and/or her attorney. 26. N/A 2 27. Any and all statements that we have, have been turned over to Plaintiffs counsel in response to a Request for Production of Documents. 28. See the statement supplied alreedy. 29. Our investigation has been supplied. 30. Our investigation has been supplied. 31. No decision has been made with respect to calling any expert at the time of trial 32. Yes. 33. Defendants will supply a copy of the declaration sheet. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Rober~ G. Hanna, Jr., E~quire 4200 Crums Mill Road,~,~\~ Suite B Harrisburg, PA 17110 I.D. No. 17890 (717) 651-3515 Attorney for Defendants, Trebor Square, Ltd and Burger King Corp. VERIFICATION Robert G. Hanna, Jr., Esquire, hereby states that he is attorney for Additional Defendants, Russoli Enterprises and Burger King, Corp., and is authorized to make this Verification on their behalf, and as such, states that the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of his knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. section 4904 relating to unswom falsification to authorities. ROBE JR. DATED: Augnst~--] ,2002 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2:534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : Certificate of Service I hereby certify that I have served upon all persons listed below a true and correct copy of the foregoing document via U.S. mail, postage prepaid this ~ 7 day o~ ~l,~ lL' , 2002. /, Anthony J. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, Pa 17033 ..'? 'RACHAEL L. MINNICH ~05_A\LIAB~.GH ~CO RR~.3186~RYM\] 4182~0000 ; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : . V. : : SYGMA, : Additional Defendant : TO: Additional Defendant, Sygma 4000 Industrial Road Harrisburg, PA 17110 You are hereby notified and required to file a written response to the Joinder Complaint within twenty (20) days from service hereof, or a default judgment may be filed against you. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN $OS~PH F. MUI~HY~ESQUIRE I.D. No. 78119 '/ 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 .4ttorn~. for Defendants Trebor Square, Ltd. and Burger King Corporation ~05_A\LIAB~.GH~LLPG~90202~RYM\I 4183~00180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : V. ' SYGMA : Additional Defandant : TREBOR SQUARE LTD.'S COMPLAINT AGAINST ADDITIONAL DEFENDANT, SYGMA 1. The Plaintiff, Hilary Sunday, is an adult individual who currently resides at 421 Lexington Court, Hershey, Pa 17033. 2. Trebor Square, Ltd. is a Pennsylvania Corporation with a business address of 5002 Lenker Street, Aspen Building, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Trebor Square, Ltd. is the owner and operator of a Burger King Restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 4. Hilary Sunday alleges that on or about November 2, 2002 that she was a customer at the aforesaid Burger King restaurant. 5. Plaintiff, Hilary Sunday further alleges that she stopped at the Burger King restaurant to eat breakfast, and while there ordered a Sausage Sandwich, Hashbrowns and Soda. 6. Plaintiff further alleges that she bit into something metallic in the aforesaid Sausage Sandwich. 7. Attached hereto and marked Exhibit "A" is a true and correct copy of Plaintiff's second Amended Complaint the averments of which are incorporated herein by reference without admission or denial. 8. Additional Defendant, Sygma, is a corporation with its principal place of business located at 4000 Industrial Road, Harrisburg, Pa 17110. 9. Additional Defendant, Sygma is Moving Defendants supplier and supplied the product that Plaintiff alleges was adulterated. 10. If it is ultimately determined that Plaintiff, Hilary Sunday, inadvertently ingested a piece of metal contained in the breakfast sandwich, than it is averred that the legal responsibility for any injury she may have sustained rests with the supplier of the food product. COUNT I- NEGLIGENCE TREBOR SQUbR~- LTl) and BURGER KING CORPORATION v. SY(}MA 11. The foregoing paragraphs of this Complaint against Additional Defendant are incorporated herein by reference. 12. The aforesaid incident described in Plaintiff's Second Amended Complaint was a direct and proximate result of the negligence, carelessness and recklessness of the Additional Defendant, Sygma as follows: a. Supplying supplies of food that were contaminated with metal. b. In not thoroughly inspecting the supplies and food that they offered for sale to the public. c. Supplying a breakfast sandwich contaminated with metal; 2 d. In not warning the Plaintiff, Hilary Sunday, or the Defendants Trebor Square, Ltd. and Burger King, Corporation that the Breakfast Sandwich which Plaintiff ordered was contaminated with metal; e. Hiring employees that were not sufficiently competent to notice the presence of metal in a breakfast sandwich as it was being prepared; f. In not sufficiently training their employees to properly prepare, cook, and/or inspect the food before it was frozen and shipped to Defendant Trebor Square, Ltd. so that there would be no metal in the breakfast sandwich; g. In allowing their employees to create a breakfast sandwich that contained metal; h. Failing to follow Health Department guidelines; i. Failing to maintain a clean work environment; and j. Not having a policy or procedure, or in failing to follow policy or procedure for inspections that could have prevented the food from being contaminated. 13. As a result of the aforesaid negligence of the Additional Defendant, Hilary Sunday alleges she sustained the injuries, which she has described fully in her Complaint attached as Exhibit "A". WHEREFORE, if it is judicially determined that Defendant, Trebor Square, Ltd. is liable to Plaintiff, Hilary Sunday, then Trebor Square, Ltd. demands judgment for Additional Defendant Sygma by way of contribution and/or indemnity, the existence of liability on the part of Trebor Square. Ltd. being denied here and elsewhere. 3 COUNT II - BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY TREBOR SQUARE~ LTD. AND BURGER KING CORPORATION v. SYGMA 14. The averments contained in Paragraphs I through 13 are incorporated herein by reference as if fully set forth at length. 15. The allegations of Plaintiffs Amended Complaint at Paragraphs 23 - 26, which is attached hereto as Exhibit "A", are incorporated herein by reference for the sole purpose of Original Defendants' joinder of Additional Defendant Sygraa, without admission or denial of the aforesaid allegations. 16. IfPlaintiffis entitled to recover, said recovery being specifically denied herein, Additional Defendant Sygma is liable over to Original Defendants and liable to Original Defendants for contribution and/or indemnity. WHEREFORE, if it is judicially determined that Defendant, Trebor Square, Ltd. is liable to Plaintiff, Hilary Sunday, then Trebor Square, Ltd. demands judgment for Additional Defendant Sygraa by way of contribution and/or indemnity, the existence of liability on the part of Trebor Square. Ltd. being denied here and elsewhere. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN JOSI~P~I l~. -MU]~I-I~', ESQUIRE I.IZ/. No. 78119-j 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 Attorney for Defendants, Trebor Square, Ltd. and Burger King Corporation 4 VERIFICATION Joseph F. Murphy, Esquire, Attorney for Defendants, Trebor Square, Ltd. and Burger King Corporation, verifies that the facts set forth in the Joinder Complaint are true to the best of his knowledge, information and belief. If the above statements are not true. the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. $OSF~FI"F. ~IURI~QLr~RE DATE: Exhibit A HILARY SUNDAY : COURT OF COMMON PLEAS 260 North College Street, : CUMBERLAND COUNTY, Palmyra, Pennsylvania 17078 : PENNSYLVANIA Plaintiff . v. : CIVIL ACTION - LAW : NO. 2001-2534 TREBOR SQUARE LTD. : 5002 Lenker Street, : Aspen Building Mechanicsburg, Pennsylwnla 17055 Defendant : JURY TRIAL DEMANDED ; & ; BURGER KIN(] CORPORATION CT Corp. System : 1515 Market Street, Suite 1210 Philadelphia, PA 19102 : Defendant : AMENDED COMPLAINT AND NOW comes the Plaintiff, HILARY SUNDAY, by and though her attorneys, NESTICO & DRUBY, L.L.P., and does respectfully represent the following: 1. The Plaintiff, HILARY SUNDAY, is an adult individual who currently resides at 260 North College Street, Palmyra, Lebanon County, Pennsylvania 17078. 2. The Defendant, TREBOR SQUARE LTD., is a Pennsylvania corporation with a business address of 5002 Lenker Street, Aspen Bui]dlng, Mechanicsburg, Cnmberland County, Pennsylvania 17055. 3. The Defendant, BURGER ICING CORPORATION, is a Pennsylvania cml~oratJon adth a registered adch'ess of 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. 4. It is believed and averred that the Defendant, TREBOR SQUARE LTD., ow,~s and operates a Burger gJng restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 5. It is believed and avert'ed that the Defendant, BURGER KING CORPORATION, is the Franchisor of the Burger King restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 6. The facts hereinafter set forth took place on November 2, 2000, at the Burger King restaurant located at 950 East High Street, Carlisle, Cumberland County, Pennsylvania 17013. 7. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, stopped at the Burger King restanrant to eat breakfast. She ordered a sausage sandwich, hash brown and a soda. 8. At the aforesaid time and place, the Plaintiff, HILARY SUNDAY, bit into something metallic in the sausage sanda,ich. 9. After looking at the sandwich, she saw a piece of metal hanging from the sandwich. 10. Plaintiff inadvertently ingested a piece of metal that was contained in the breakfast sandwich, prior to discovering the metal. 11. As the proximate result of the negligence of Defendants, Plaintiff, HILARY SUNDAY, suffered serious injuries, including but not limited to the following: (a) Abdominal pain; (b) Constipation; (c) Epigastic pain; (d) Nausea; (e) Shock to nerves and nervous system; (0 Emotional distress; and (g) Pain and suffering. 12. As a result of the negligence of Defendants, Plaintiff required significant medical treatment, including but not limited to: (a) Several emergency room examinations; Co) An Esophagogastroduodenoscopy; (c) Six (6) Enemas; and (d) Multiple x-rays _COUNT I-NEGLIGENCE HILARY SUNDAY V. TREBOR SQUARE LTD. 13. The foregoing paragraphs of this Complaint are incorporated herein by reference and made a part hereof as if set forth in fun. 14. The aforesaid incident was a direct and proximate result of the negligence, carelessness and rec 'idessness of the Defend~mt, RUSSOLI ENTERPRISES, INC., in the following, particularly: (a) In buying supplies or food that were contaminated ~vith metal; (b) In not thoroughly inspecting the supplies and food that they offered for sale to the public; (c) In serving a breakfast sandwich contaminated with metal; (d) In not warning the Plaintiff, HILARY SUNDAY, that the breakfast sandwich she ordered was contaminated with metal; (e) In hi~ing employees who are not competent enough t~ notice that there was metal in the breakfast sandwich; (f) In not std~iciently training their employees to properly prepare, cook and/or inspect the food served so that there would be no metal in the breakfast sandwich; (g) In not sufficiently supex~ising their employees and allowing them to serve a breakfast sandwich that contained metal; (h) In allowing their employees to serve a breakfast sandwich that contained metal; (i) In failing to follow Heath Department guidelines; (j) In failing to maintain a clean work environment; and (k) In not having a policy or procedure, or in f~ilh~g to follow a policy or procedure, for h~spections that could have prevented the food from being contaminated. 15. As a direct and proximate result of her aforesaid injuries, Plaintiff. HILARY SUNDAY, has undergone and in the future will undergo great pain and suffering, embarrassment and humiliation for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY has and/or may in the future incur expenses for lost wages, medical treatment and rehabihtation for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY, has sustained a diminution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against the Defendants in an amount in excess of the limit set forth for mandatory arbitration. COUNT II - NEGLIGENCE HILARY SUNDAY V. BURGER KING CORPORATION 18. The forgoing numbered paragraphs are incorporated herein by reference. 19. The aforesaid incident was a direct and proximate result of the negligence of Defendant, BURGER KING CORPORATION, in the following, particularly: (a) In franchising their restaurant to a corporation that operated their business in a careless, reckless and negligent manner, as set forth elsewhere in this complaint; (b) In franchising their restaurant to a corporation that bought supplies that were contaminated with metal; (c) In fi'anchising their restaurant to a corporation that did not thoroughly inspect the supplies that they bought; (d) In franchising their restaurant to a corporation that did not warn the Plaintiff, HILARY SUNDAY, that the breakfast sandwich she ordered was contaminated; (e) In fi'anchising their restaurant to a corporation that hired employees that are not competent enough to notice that there was metal in the breakfast sandwich; (f) In franchising their restaurant to a corporation that did not sufi~iciently traiu their employees to know that there should not be metal in the breakfast sandwich; (g) In franchising their restaurant to a corporation that did not sufficiently supervise their employees and allow them to serve a breakfast sandwich that contained metal; (h) In franchisiag their restaurant to a corporation that allowed their employees to serve a breakfast sandwich that contained metal; (i) In franchising their restaurant to a corporation that did uot ~naintain a clean environment in which to prepare and se~e food to the public; O) In franchising their restaurant to a corporation that did not have a policy or procedure, or one that failed to follow a policy or procedure, for inspections that could have prevented the food from being contaminated; (k) In franchising their restaurant to a corporation that did not comply with applicable health regulations; (1) In franchising their restaurant to a corporation that did not have inspections that could have prevented the food from being contaminated. 20. As a direct and pro~,nate result of her aforesaid injuries, Plaiutiff, HILARY SUNDAY, has uudergone and in the future will undergo great pain m~d suffering for which damages are claimed. 21. As a fi~rther result of the aforesaid injuries, Plaintiff, HILARY SUNDAY has and/or may in the future incur expenses for lost wages, medical treatment and rehabilitatiou for which damages are claimed. 22. As a further result of the aforesaid injuries, Plaintiff, HILARY SUNDAY, has sustained a dimiuution in her ability to enjoy life and life's pleasures for which damages are claimed. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against Defeudants in an amouut that exceeds the limit set forth in Cu~nberland County for mandatory arbitration. COUNT III-BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY HILARY SUNDAY V. BURGER KING CORPORATION & TREBOR SQUARE LTD. 23. The forgoing numbered paragraphs are incorporated herein by reference. 24. Pennsylvania Law imposes an implied warrant of merchantability with respect to food sold for public consumption. 25. The implied warranty of merchantability requires that food sold for public consumption at least: (a) pass without objection in the trade; (b) in the case of fungible goods, be of fair average quality within the description; (c) be fit for the ordinary purposes for which such goods are used; (d) be adequately contained, packaged, and labeled as the agreement may require; 26. The Defendants have breached the implied warranty of merchautability in that: (a) the breakfast sandwich could not pass without objection in the trade; (b) the breakfast sandwich was not of fair average quality; (c) the breakfast sandwich was not fit for the ordinary purposes for which such goods are used; (d) the breakfast sandwich was not adequately contained, packaged or labeled. WHEREFORE, Plaintiff respectfully demands judgment in her favor and against Defendants in an amount that exceeds the limit set forth in Cumberland County for mandatory arbitration. Respecffu lly Submitted, NESTICO & DRUBY, L.L.P. Anthony,_g.[l~estico, Etquire Attorney I.I~. No. 58868 840 East Chocolate Avenue H~.rshey, Pennsylvania 17033 (717) 533-5406 Date: //~'~ ~3 J?- (717)533-5717 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury THai Demanded KING, CORPORATION, : Defendants : Certificate of Service I hereby certify that I have served upon all persons listed below a tree and correct copy of the foregoing document via U.S. mail, postage prepaid this'N~)\/~'3Y day of January, 2003. Anthony J. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, Pa 17033 Joann~M. Parr - SHERIFF'S RETURIg - OUT OF cOUNTY CASE NO: 2001-02534 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUNDAY HILARY VS BURGER KING CORP 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 ADD'L DEFENDANT , to wit: SYGMA but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On February 3rd , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So .. jo>... Docketing 18.00 ~~~~ Out of County 9.00 '-'F-~=--~''-:" Surcharge 10.00 R. Thomas Kline Dep Dauphin County 29.25 Sheriff of Cumberland County .00 66.25 02/03/2003 MARSHALL DENNEHEY WARNER COLEM Sworn and subscribed to before me this ~ day of ~ 3~o3 A.D. I J Prothonotar~" J. Daniel Basils Mary Jane Snyder ChieflX'puty Michael W. Rinehart William T. Tully Assistant Chief IX'pu~ Dauphin County Harrisburg, P~nmaylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania : SUNDAY HILARY vs County of Dauphin : sYc~m Sheriff' s Return No. 0210-T - - -2003 OTHER COUNTY NO. 01 2534 AND NOW:January 29, 2003 at 8:25AMserved the within NOTICE & COMPLAINT upon SYGMA by personally handing to TIM NAYLOR (HUMAN RES MANG) i true attested copy(les) of the original NOTICE & COMPLAINT and making known to him/her the ccmtents thereof at 4000 INDUSTRIAL ROAD HARRISBURG, PA 00000-0000 Sworn and subscribed to So Answers, before me ,his 29TH day of~ANUA~Y, 200, PROTHONOTARY By Deputy Sheriff Sheriff's Costs: $29.25 PD 01/27/2003 ECPT 1~0 174635 ~,n The Court of Common Pleas of Cumberland County, Pennsylvania Hilarv Sunday VS Rus~oli Enterprises et al VS. SY(~A 01- 2534 civil SERVE: s~e ~o. Now, Jamuary 23, 2003 , I, SHERIFF OF CUlVIBERLAND COUNTY', PA, do hereby deputize the Sheriff of ~uphin Count3, to execute thi. s WriL this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 ~ at o'clock __ M. served the within upon at by handing to a copy oft.he ori~nal and made known to the contents thereof. SO allswcrs, Shoriff of County, PA COSTS Sworn and subscribed before SERVICE $ me this __ day of ,20 MILEAGE AFFIDAVIT $ HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SYGMA, : Additional Defendant : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE To The Prothonotary of Cumberland County, Pennsylvania: Please enter my appearance on behalf of Additional Defendant, SYGMA in ~he above-captioned action. Peters & Wasilefski By: '~ Attorney ID~'Zb~0 J 2931 Norfli Front Street Harrisburg, PA 17110 717- 238-7555 Date:'~/~ /'--~ t~TggO ~ Attorney for Additional Defendant, SYGMA HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. ' : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SY~MA, : Additional Defendant : JURY TRIAL DEMANDED C~RTIFICATE OF SF. RVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Entry of Appearance, has been served on all parties of interest by placing the same in the United States mail, first- class postage pre-paid, at Harrisburg, Pennsylvania on this 1.~' day of February, 2003, and addressed as follows: Anthony Nestico, Esquire Ne~tico & Druby, LLP 840 East Chocolate Avenue Hershey, Pennsylvania 17033 Attorney for Plaintiff Joseph F. Murphy, Esquire Marshall, Dennchey, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B HmTisburg, Pennsylvania 17112 Attorney for Defendants Peters & Wasilefski HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. ' : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. CIVIL ACTION - LAW SYGMA, Additional Defendant : JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer, New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d) of Additional Defendant within twenty (20) days from service hereof or a judgment may be entered against you. Peters & Wasilefski 2931 N, Street Harrisburg, PA 17110 717-238-7555 Da~e: ff~ ~//, ;190...g attorney for Additional Defendant. SYGMA HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V, ' : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SYGMA, : Additional Defendant : JURY TRIAL DEMANDED ANSWER AND NEW MATTER WITH NEW MATTER PURSUANT TO Pa. R.C.P. 22~2(d) OF ADDITIONAL DEFENDANT, SYGMA AND NOW, comes Additional Defendant, SYGMA ("SYGMA"), by and through its attorneys, Peters & Wasllefski, and answers Defendant, Trebor Square Ltd.'s Comp]aim against Additional Defendant, SYGMA, and avers New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d) thereto as follows: I. Denied. Additional Defendant, SYGMA specifically denies the allegations set forth in paragraph I. After reasonable investigation, Additional Defendant, SYGMA is without knowledge or information sufficient to from a belief as to the troth of said allegations, and the same am therefore deemed denied and strict proof thereof is demanded. 2. Denied. Additional Defendant, SYGMA specifically denies the allegations set forth in paragraph 2. After reasonable investigation, Additional Defendant, SYGMA is without knowledge or information sufficient to from a belief as to the troth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. 3. Denied. Additional Defendant, SYGMA specifically denies the allegations set forth in paragraph 3. After reasonable investigation, Additional Defendant, SYGMA is without knowledge or information sufficient to from a belief as to the troth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. 4. Admitted. By way of further answer, Additional Defendant, SYGMA merely admits that Plaintiff so alleges. The substance of Plaintiff's allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 5. Admit/ed. By way of further answer, Additional Defendant, SYGMA merely admits that Plaintiff so alleges. The substance of Plaintiff's allegations are specifically denied in accordance with Pa. R.C.P. 10929(e). 6. Admitted. By way of further answer, Additional Defendant, SYGMA merely admits that Plaintiff so alleges. The substance of Plaintiff's allegations are specifically denied in accordance with Pa. R.C.P. 10929(e). 7. Admitted. Additional Defendant admits merely that Defendant, Trebor Square, Ltd. attached a tree and correct copy of Plaintiff's Second Amended Complaint. By way of further answer, the averments of Plaintiff's Second Amended Complaint are specifically denied in accordance with Pa. R.C.P. 1029(e). 8. Admiued in part and denied in part. It is admitted only that Defendant, SYGMA is a corporation and has a place of business at the stated address. It is specifically denied that said address is Defendant, SYGMA's principle place of business. 9. Admitted in part and denied in part. It is admitted only that Additional Defendant, SYGMA, supplied the cheese, sausage patty and egg to Defendants. It is specifically denied that Additional Defendant, SYGMA had any actual direct contact with any of those food products, and/or that any of those food products became adulterated while in the care, custody and control of Additional Defendant, SYGMA. To the contr'/ay, Additional Defendant, SYGMA is simply a tracking company which obtained the cheese, sausage patty and egg from three separate food suppliers and in turn delivered said products to Defendants. 10. Denied. Additional Defendant, SYGMA is advised by counsel and therefore avers that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). COUNT ! - NEGLIGENCE TREBOR SOUARE, LTD and BURGER KING CORPORATION V. SYGMA I i. Additional Defendant, SYGMA incorporates paragraphs 1 through 10 above by reference thereto as though set forth herein at length. 12. Denied. Additional Defendant, SYGMA is advised by counsel and therefore avers that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 13. Denied. Additional Defendant, SYGMA is advised by counsel and therefore avers that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against all other parties to this action. 4 COUNT I! - BREACH OF IMPLIED WARRANTY OF MERCHANTIlHLITY TREBOR SOUARE. LTD. and BURGER KING CORPORATION v. SYGMA 14. Additional Defendant, SYGMA incorporates paragraphs 1 through 13 above by reference thereto as though set forth herein at length. 15. Denied. Additional Defendant, SYGMA specifically denies the allegations of paragraph 15. Said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 16. Denied. Additional Defendant, SYGMA is advised by counsel and therefore avers that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against all other parties to this action. NEW MATTER 17. Additional Defendant, SYGMA incorporates paragraphs I through 16 above by reference thereto as though set forth herein at length. 18. Plaintiff's claims are barred by the statute of limitations. 19. Plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 20. Plaintiff's contributory negligence consisted of: (a) Failing to appropriately observe an open and obvious defect in the product in question; (b) Failing to exercise duc diligence to ensure her own safety; (c) Failing to pay proper attention to the food product that she was in the process of consuming; (d) Failing to look at what she was eating; (e) Failing to notice the alleged open and obvious foreign object in the product in question; and (f} Failing to eat the product in question in a reasonable manner. 21. Any injuries or damages allegedly suffered by Plaintiff, which are specifically denied, were solely the direct and proximate result of Plaintiff's own negligence. 22. Any injuries or damages allegedly suffered by Plaintiff, which are specifically denied, were the direct and proximate result of Plaintiff's own contributory negligence. 23. Plaintiff's claims are barred by the doctrine of assumption of risk since Plaintiff knowingly and voluntarily ingested the product that contained an open and obvious defect. 24. The injuries and damages allegedly suffered by Plaintiff, which are specifically denied, may have been due in whole or in part to the negligence of third persons or entities who are not presently parties to this lawsuit. 25. Additional Defendant, SYGMA was not negligent or careless in any manner whntsoever with regard to the facts and circumstances set forth in Plaintiff's Complaint. 26. Additional Defendant, SYGMA owed no duty of care to the Plaintiff under the facts and circumstances set forth in Plaintiff's Complaint. 27. Plaintiff has no cause of action against Additional Defendant, SYGMA based upon the facts and circumstances set forth in Plaintiff's Complaint. 28. Additional Defendant, SYGMA had no actual direct contact with any aspect of the food product in question. 6 29. Additional Defendant, SYGMA did not physically touch any portion of the actual food pwduct in question. 30. Additional Defendant, SYGMA did not manufacture or otbetwise produce any of the food products involved. 3 I. Additional Defendant, SYGMA did not prepare any of the food products in question. 32. Additional Defendant, SYGMA did not make the end product in question. 33. Additional Defendant, SYGMA is nothing more than a tmcking company which transported the food products from the food suppliers to the Defendants. 34. Additional Defendant, SYGMA had no obligation to inspect or otherwise test the food products in question. 35. Additional Defendant, SYGMA did not inspect or test the food products in question. 36. Additional Defendant, SYGMA had no obligation, either contractually or at law, with regard to quality control concerning the food products in question. 37. Additional Defendant, SYGMA did not exercise any quality control measures with regard to the actual preparation of the food products in question. 38. No act or failure to act on the part of Additional Defendant, SYGMA caused or contributed to the incident or any of the alleged injuries or damages, if any, which are specifically denied. 39. The food products in question were substantially modified by others after they were delivered to Defendant and before being sold to and ingested by Plaintiff. 40. The food products in question were substantially altered after they were delivered to Defendant by Additional Defendant, SYOMA and prior to being ingested by Plaintiff. 41. Additional Defendant, SYGMA did not cause any foreign object to be introduced into the food products in question. 42. Additional Defendant, SYGMA did not permit any foreign objects to be introduced into the food products in question. 43. Third parties over whom Additional Defendant, SYGMA had no control or right of control may have been responsible for the introduction of the foreign object into the food products in question. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Plaintiff. NEW MATTER PURSUANT TO Pa. ILC.P. 2252¢d) AGAINST DEFENDANTS 44. Additional Defendant, SYGMA incorporates the allegations contained in Plaintiff's Complaint by reference thereto, without admission or adoption thereof. 45. In the event that any liability is found to exist on the part of Additional Defendant, SYGMA, which liability is specifically denied, then Defendants are solely liable to Plaintiffs, are liable over to Additional Defendant, SYGMA for contribution and/or indemnification, or are jointly and severally liable to Plaintiff. 46. In the event that the harm, losses, damages and injuries alleged by Plaintiff are found to exist, which is specifically denied, then Defendants are solely liable to Plaintiff for the harm, losses, damages and injuries, or are liable over to Additional Defendant, SYGMA for contribution and/or indemnification, or are jointly and severally liable to Plaintiff. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against all other parties to this action. 8 Peters & Wasilefski ~ ID ~Y2670 Attome} 2931 North Front Street Harrisburg, PA 17110 717-238-7555 Date: ~l~tff~! ~00.~ Att omey for Additional Defendant, SYGMA I hereby affirm that the following facts are correct: I am a representative of the Additional Defendant. SYGMA and am authorized to make this Verification; the attached Answer, New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d) of Additional Defendant, SYGMA is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in the preparation of the lawsuit. The language of the Answer, New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d) of Addilional Defendant, SYGMA is that of counsel and not of mc. I have read thc Aaswer, New M~er and New Matter Pursuant to Pa. R.C.P. 2252(d) of Additional Defendant, SYGMA and to the extent that the same is based upon information which I have given to my counsel, it is tree and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer, New Mat~er and New Matte~ Pursuant to Pa. R.C.P. 2252(d) of Additional Defendant, SYGMA is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the Answer, New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d) of Additional Defendant, SYGMA are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to Terry Sh~blin, SYGMA Date: , HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA . V. ' : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SYGMA, : Additional Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE ! hereby certify that a tree and correct copy of the foregoing Answer, New Matter and New Matter Pursuant to Pa. R.C.P. 2252(d), has been served on all parties of interest by placing the same in the United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this 26~ day of Mar~h, 2003, and addressed as follows: Anthony Nestico, Esquire Nestico & Druby, LLP 840 East Chocolate Avenue Hershey, Pennsylvania 17033 Attorney for Plaintiff Joseph F. Murphy, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, Pennsylvania 17112 Attorney for Defendants Peters & Wasilefski HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V, ' : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : v. : CIVIL ACTION - LAW : SYGMA, DUERSON FOODS, LLC, : MICHAEL FOODS SALES/NORTHERN : STAR, a subsidiary of MICHAEL FOODS, : INC., and SCHREIBER FOODS, INC., : Additional Defendants : JURY TRIAL DEMANDED NOTICE You have been sued in court. Il' you wish to defend against the claims set forth in the following pages, you must take action within twenty ¢20~ days a~r this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense 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 judgmenl may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important lo 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 717-249-3188 1-800-990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted §uiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la focha de la demanda y la notificacion. Usted debe presentar una apariencia excrila o en persona o por abogado y archivar en la cotte an forma escrita sus defeesas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte ~omara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y po' cualquier queja o alivio que es predido en la peticion de demanda. Usted puede perder dinero o sus propriendades o sffos derechos importantes para usted. !.!.~.VE ESTA DEMANDA A UN ABROGADO IMMEDIATAMENTt... SI NO TIENE ABOGADO O SI NO 'I't~NE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONCO A LA OFICINA CUYA DIRECCION SE ENCUENTRA EXCRITA ABA JO PARA AVERIGUAR DONDE SE PAUEDE CONSEQUIR ASSISTANCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 717-249-3188 1-800-990-9108 HILARY SUNDAY, : I~ THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SYGMA, DUERSON FOODS, LLC, : MICHAEL FOODS SALES/NORTHERN : STAR, a subsidiary of MICHAEL FOODS, : INC., and SCHREIBER FOODS, INC., : Additional Defendants : JURY TRIAL DEMANDED ADDITIONAL DEFENDANT, SYGMA'S JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANTS, DUERSON FOODS, LLC, MICHAEL FOODS SALES/NORTHERN STAR, A SUBSIDIARY OF MICHAEL FOODS, INC. AND SCHREIBER FOODS, INC. AND NOW, comes Additional Defendant, SYGMA ("SYGMA"), by and through its attorneys, Peters & Wasilefski, and files this Joinder Complaint against Additional Defendants, Duerson Foods, LLC ("Duerson"), Michael Foods Sales/Northern Star, a subsidiary of Michael Foods, Inc. ("Michael Foods"), and Schreiber Foods, Inc. ("Schreiber"), based upon the following: 1. SYGMA incorporates the Amended Complaint of Plaintiff, Hilary Sunday ("Plaintiff'), that was attached as an exhibit to Defendant, Trebor Square, Ltd.'s Complaint against Additional Defendant, SYGMA, and incorporates the averments contained therein, without admission or adoption thereof, merely for the purpose of the within Joinder Complaint against Additional Defendants, Duerson, Michael Foods and Schreiber. 2. SYGMA is a corporation which regularly conducts business in the Commonwealth of Pennsylvania with a place of business located at 4000 Industrial Road, Harrisburg, Pennsylvania 17110. 3. SYGMA is a tracking company which transported the cheese, sausage and egg products in question to Defendants' Burger King Restaurant located at 950 East High Street, Carlisle, Pennsylvania 17013. 4. Additional Defendant, Duerson is a corporation which regularly conducts business in the Commonwealth of Pennsylvania, and with a business address of 100 Tri-State International, Suite 115, Lincolnshire, Illinois 60069. 5. Additional Defendant, Duerson is in the business of manufacturing, preparing, producing, selling, supplying, distributing and otherwise placing into the stream of commerce various food products. 6. Additional Defendant, Duerson manufactured, produced, prepared, sold, supplied, distributed and otherwise placed into the stream of commerce the sausage product contained in the breakfast sandwich referenced in PlaintifI's Complaint. 7. Additional Defendant, Michael Foods is a corporation which regularly conducts business in the Commonwealth of Pennsylvania, and with the business address of 3171 Fifth Street, S.E., Minneapolis, Minnesota 55414-3374. 8. Additional Defendant, Michael Foods is in the business of manufacturing, producing, preparing, supplying, selling, distributing, and/or otherwise placing into the stream of commerce various food products. 9. Additional Defendant, Michael Foods manufactured, produced, prepared, sold, supplied, distributed, and/or otherwise placed into the stream of commerce the egg product contained in the breakfast sandwich referenced in Plaintiffs' Complaint. 10. Additional Defendant, Schreiber is a corporation which regularly conducts business in the Commonwealth of Pennsylvania with business address of 425 Pine Street, Green Bay, Wisconsin 54307. 11. Additional Defendant, Schreiber is in the business of manufacturing, producing, preparing, selling, supplying, distributing, or otherwise placing into the stream of commerce various food products. 12. Additional Defendant, Schreiber manufactured, produced, prepared, sold, supplied, distributed, or otherwise placed into the stream of commerce the cheese product contained in the breakfast sandwich referenced in Plaintiff's Complaint. 13. Additional Defendant, SYGMA obtained the sausage product in question from Additional Defendant, Duerson and delivered the same to Defendants who in turn incorporated the sausage product into the breakfast sandwich referenced in Plaintiff's Complaint. 14. Additional Defendant, SYGMA obtained the egg product in question from Additional Defendant, Michael Foods and delivered the same to Defendants who in turn incorporated the egg product into the breakfast sandwich referenced in Plaintiff's Complaint. 1:5. Additional Defendant, SYGMA obtained the cheese product in question from Additional Defendant, Schreiber and delivered the same to Defendants who in turn incorporated the cheese product into the breakfast sandwich referenced in Plaintiff's Complaint. 16. Additional Defendant, SYGMA had no actual, physical contact with the sausage, egg or cheese products supplied by Additional Defendants, Duerson, Michael Foods and Schreiber as set forth above, and as incorporated into the breakfast sandwich referenced in Plaintiff's Complaint. 17. Plaintiff alleges that on or about November 2, 2002, she was a customer at the aforesaid Burger King Restaurant. 18. Plaintiff further alleges in her Complaint that she ordered a sausage sandwich at the Burger King, which is comprised of a croissant, sausage, egg and cheese. 19. Plaintiff alleges in her Complaint that while ingesting the sausage sandwich referenced above, she bit into something metallic and claims to have suffered personal injuries therefrom. COUNT ! - NEGLIGENCE SYGMA V. DUERSON 20. SYGMA incorporates paragraphs I through 19 above by reference thereto as though set forth herein at length. 21. The incident in question and the alleged resulting injuries and damages, if any, which are specifically denied, were the direct and proximate result of the negligence, carelessness and recklessness of Additional Defendant, Duerson as follows: (a) Supplying a food product that was contaminated with a foreign object; (b) Supplying a food product that was contaminated with metal; (c) In failing to conduct an appropriate and adequate inspection of its food product prior to placing it into the stream of commerce; (d) In offering for sale to the public a food product that was deficient and dangerous; (e) In failing to utilize necessary quality control measures to avoid placing a food product into the stream of commerce that contained a foreign object and/or which was otherwise contaminated with metal; (f) In hiring employees that were not competent and/or adequately trained to conduct the necessary quality conU'ol measures to detect the presence of foreign objects and/or a piece of metal in a food product prior to placing the same into the stream of commerce; (g) In failing to sufficiently train their employees in the necessary steps to take to ensure that their food products did not contain foreign objects and/or pieces of metal; (h) In failing to warn the other parties to this litigation that their food product contained a foreign object; (i) In failing to warn the other parties to this action that they failed to implement necessary quality control measures to ensure that their food products did not contain foreign objects; (j) In falling to follow state or federal guidelines to ensure that their food products did not contain foreign objects; (k) In failing to maintain a clean and safe work environment to ensure that their food products were not placed into the stream of commerce containing foreign objects; (1) In failing to institute and/or follow proper and adequate policies and procedures to ensure that their food products were not placed into the stream of commerce while containing foreign objects; (m) In placing their food products into the stream of commerce when it was unsafe to do so; (n) In placing their food product into the stream of commerce when it was potentially harmful to the consuming public to do so; and (o) In failing to purchase, and/or utilize metal detection equipment to scan all of its food products for the presence of metal prior to placing the same into the stream of commeree. 22. As a result of the a/bresaid negligence, carelessness and recklessness of Additional Defendant, Duerson as set forth above, Plaintiff alleges she sufl'bred injuries and damages, which are specifically denied, but which are fully described in Plaintiff's Complaint. 23. Additional Defendant, Duerson is joined herein by SYGMA on the basis that said Additional Defendant is solely liable to Plaintiff. 24. Additional Defendant, Duerson is joined herein by SYGMA on the basis that said Additional Defendant is jointly and/or severally liable to Plaintiff. 25. Additional Defendant, Duerson is joined herein by SYGMA on the basis that said Additional Defendant is liable to Additional Defendant, SYGMA for contribution and/or indemnification. 7 WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Duerson. COUNT I1 - BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY SYGMA V. DUERSON 26. SYGMA incorporates paragraphs I through 25 above by reference thereto as though set forth herein at length. 27. The allegations of Plaintiffs Amended Complaint at paragraphs 23 - 26 are incorporated herein by reference thereto for the sole purpose of this Joinder Complaint, without admission or adoption thereof. 28. In the event that Plaintiff is entitled to recover based upon said allegations of her Complaint, then Additional Defendant, Duerson is solely liable to Plaintiff. 29. If Plaintiff is entitled to recover based upon said allegations of Plaintiff's Complaint, then Additional Defendant, Duerson is jointly and severally liable to Plaintiff. 30. If Plaintiff is entitled to recover based upon said allegations of Plaintiff's Complaint, then Additional Defendant, Duerson is liable to Additional Defendant, SYGMA for contribution and/or indemnification. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Duerson. COUNT ill - NEGLIGENCE SYGMA V. MICHAEL FOODS 31. SYGMA incorporates paragraphs I through 30 above by reference thereto as though set forth herein at length. 32. The incident in question and the alleged resulting injuries and damages, if any, which are specifically denied, were the direct and proximate result of the negligence, carelessness and recldessness of Additional Defendant, Michael Foods as follows: (a) Supplying a food product that was contaminated with a foreign object; (b) Supplying a food product that was contaminated with metal; (c) In failing to conduct an appropriate and adequate inspection of its food product prior to placing it into the stream of commerce; (d) In offering for sale to the public a food product that was deficient and dangerous; (e) In failing to utilize necessary quality control measures to avoid placing a food product into the stream of commerce that contained a foreign object and/or which was otherwise contaminated with metal; (f) In hiring employees that were not competent and/or adequately trained to conduct the necessary quality control measures to detect the presence of foreign objects and/or a piece of metal in a food product prior to placing the same into the stream of commerce; (g) In failing lO sufficiently train their employees in the necessary steps to take to ensure that their food products did not contain foreign objects and/or pieces of metal; (h) In failing to warn the other parties to this litigation that their food product contained a foreign object; (i) In falling to warn the other patties to this action that they failed to implement necessary quality control measures to ensure that their food products did not contain foreign objects; O)In falling to follow state or federal guidelines to ensure that their food products did not contain foreign objects; (k) In failing m maintain a clean and safe work environment to ensure that their food products were not placed into the stream of commerce containing foreign objects; (1) In failing to institute and/or follow proper and adequate policies and procedures to ensure that their food products were not placed into the stream of commerce while containing foreign objects; (m) In placing their food products into the stream of commerce when it was unsafe to do soi (n) In placing their food product into the stream of commerce when it was potentially harmful to the consunting public to do so; and (o) In failing to purchase, and/or utilize metal detection equipment to scan all of its food products for the presence of metal prior to placing the same into the stream of commerce. 33. As a result of the aforesaid negligence, carelessness and recklessness of Additional Defendant, Michael Foods as set forth above, Plaintiff alleges she suffered injuries and damages, which am specifically denied, but which are lhlly described in Plaintiff's Complaint. 34. Additional Defendant, Michael Foods is joined herein by SYGMA on the basis that said Additional Defendant is solely liable to Plaintiff. 35. Additional Defendant, Michael Foods is joined herein by SYGMA on the basis that said Additional Defendant is jointly and/or severally liable to Plaintiff. 36. Additional Defendant, Michael Foods is joined herein by SYGMA on the basis that said Additional Defendant is liable to Additional Defendant, SYOMA for contribution and/or indemnification. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Michael Foods. COUNT IV - BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY SYGMA V. MICHAEL FOODS 37. SYGMA incorporates paragraphs I through 36 above by reference thereto as though set forth herein at length. 10 38. The allegations of Plaintiff's Amended Complaint at paragraphs 23 - 26 are incorporated herein by reference thereto for the sole purpose of this Joinder Complaint, without admission or adoption thereof. 39. In the event that Plaintiff is entitled to recover based upon said allegations of her Complaint, then Additional Defendant, Michael Foods is solely liable to Plaintiff. 40. If Plaintiff is entitled to recover based upon said allegations of Plaintiff's Complaint, then Additional Defendant, Michael Foods is jointly and severally liable to Plaintiff. 41. If Plaintiff is entitled to recover based upon said allegations of Plaintiff's Complaint, then Additional Defendant, Michael Foods is liable to Additional Defendant, SYGMA for contribution and/or indemnification. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Michael Foods. COUNT V - NEGLIGENCE SYGMA V. SCHREIBER 42. SYGMA incorporates paragraphs ! through 41 above by reference thereto as though set forth herein at length. 43. The incident in question and the alleged resulting injuries and damages, if any, which are specifically denied, were the direct and proximate result of the negligence, carelessness and recklessness of Additional Defendant, Schreiber as follows: (a) Supplying a food product that was contaminated with a foreign object; (b) Supplying a food product that was contaminated with metal; 11 (c) In failing to conduct an appropriate and adequate inspection of its food product prior to placing it into the stream of commerce; (d) In offering for sale to the public a food product that was deficient and dangerous; (e) In falling to utilize necessary quality control measures to avoid placing a food product into the strean~ of commerce that contained a foreign object and/or which was otherwise contaminated with metal; (O In hiring employees that were not competent and/or adequately trained to conduct the necessary quality control measures to detect the presence of foreign objects and/or a piece of metal in a food product prior to placing the same into the stream of commerce; (g) In falling to sufficiently train their employees in the necessary steps to take to ensure that their food products did not contain foreign objects and/or pieces of metal; (h) In failing to warn the other parties to this litigation that their food product contained a foreign object; (i) In failing to warn the other parties to this action that they failed to implement necessary quality control measures to ensure that their food products did not contain foreign objects; (j) In falling to follow state or federal guidelines to ensure that their food products did not contain foreign objects; (k) In failing to maintain a clean and safe work environment to ensure that their food products were not placed into the stream of commerce containing foreign objects; (I) In failing to institute and/or follow proper and adequate policies and procedures to ensure that their food products were not placed into the stream of commerce while containing foreign objects; (m) In placing their food products into the stream of commerce when it was unsafe to do so; (n) In placing their food product into the stream of commerce when it was potentially harmful to the consuming public to do so; and 12 (o) In falling to purchase, and/or utilize metal detection equipment to scan all of its food products for the presence of metal prior to placing the same into the stream of commerce. 44. As a result of the aforesaid negligence, carelessness and recklessness of Additional Defendant, Schreiber as set forth above, Plaintiff alleges she suffered injuries and damages, which are specifically denied, but which are fully described in Plaintiff's Complaint. 45. Additional Defendant, Schreiber is joined herein by SYGMA on the basis that said Additional Defendant is solely liable to Plaintiff. 46. Additional Defendant, Schreiber is joined herein by SYGMA on the basis that said Additional Defendant is jointly and/or severally liable to Plaintiff. 47. Additional Defendant, Schreiber is joined herein by SYGMA on the basis that said Additional Defendant is liable to Additional Defendant, SYGMA for contribution and/or indemnification. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Schreiber. COUNT V! - BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY SYGMA V. SCHREIBER 48. SYGMA incorporates paragraphs I through 47 above by reference thereto as though set forth herein at length. 49. The allegations of Plaintiff's Amended Complaint at paragraphs 23 - 26 are incorporated herein by reference thereto for the sole purpose of this Joinder Complaint, without admission or adoption thereof. 50. In the event that Plaintiff is entitled to recover based upon said allegations of her Complaint, then Additional Defendant, Schreiber is solely liable to Plaintiff. 13 $1. If Plaintiff is entitled to recover based upon said allegations of Plaintiffs Complaint, then Additional Defendant, Schreiber is jointly and severally liable to Plaintiff. 52. If Plaintiff is entitled to recover based upon said allegations of Plaintiff's Complaint, then Additional Defendant, Schreiber is liable to Additional Defendant, SYGMA for contribution and/or indemnification. WHEREFORE, Additional Defendant, SYGMA demands that judgment be entered in its favor and against Additional Defendant, Schreiber. Peters & Wasilefskl By: ~ ID $5267~ ^ttomey 2931 North Front Street Harrisburg, PA 17110 717-238-7555 Date:~~ ~0~/~0 ~ Atlorney for Additional Defendant, SYGMA 14 I hereby affirm that the following facts are correct: I am a representative of the Additional Defendant. SYGMA and am authorized to make this Verification; the attached Additional Defendant, SYGMA'S Joinder Complnint Against Additional Defendants, Duerson Foods, LLC, Michael Foods Sales/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc. is based upon information which I have ftunished to my counsel and information which has been gathered by my counsel in the preparation of the lawsuit. The language of the Additional Defendant, SYGMA'S Joinder Complaint Against Additional Defendants, Due~son Foods, LLC, Michael Foods Sales/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc. is that of counsel and not of me. I have read the Additional Defendant, SYGMA'S Joinder Complaint Against Additional Defendants, Duerson Foods, LLC, Michael Foods Ssies/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc. and to the extent that the same is based upon Information which I have given to my counsel, it is tree and correct to the best of my knowledge, information and belief. To the extent that the content of the Additional Defendant, SYOMA'S Joinder Complaint Against Additional Defendants, Duerson Foods, LLC, Michael Foods Sales/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc. is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the Additional Defendant, SYGMA'S Joinder Complaint Against Additional Defendants, Duerson Foods, LLC, Michael Foods Sales/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc. are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorifins. Terry Sham'blin, SYGMA Date: 3 / 2~1/13'~ HILARY SUNDAY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : : DOCKET NO: 2001-2534 TREBOR SQUARE LTD, and BURGER : KING, CORPORATION, : Defendants : : v. : CIVIL ACTION - LAW : SYGMA, : Additional Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE ! hereby certify that a true and correct copy of the foregoing Additional Defendant, SYGMA's Joinder Complaint Against Additional Ddendants, Duerson Foods, LLC, Michael Foods Sales/Northern Star, A Subsidiary of Michael Foods, Inc. and Schreiber Foods, Inc., has been served on all parties of interest by placing thc same in the United States mail, tint-class postage pre-paid, at Harrisburg, Pennsylvania on this 26~ day of M~reh, 2003, and addressed as follows: Anthony Nestico, Esquire Nestico & Druby, LLP 840 East Chocolate Avenue Hershey, Pennsylvania 17033 Attorney for Plaintiff Joseph F. Murphy, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, Pennsylvania 17 i 12 Attorney for Defendants Peters & Wasilefski FIILARY SUNDAY Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : TREBOR SQUARE LTD, and ' BURGER KING CORPORATION i NO. 2001-2534 Defendants : CIVIL ACTION _ LAW V. : SYGMA, : : JURY TR/AL DEMANDED Additionaj Defendant : PLAINTIFF'S REPLy TO NEW MATTER OF ADDITIONAL DEFENDANT SYGMA AND NOW the Plaintiff, by and through her undersigned legal counsel files reply to New Matter of Additional Defendant SYGMA in this following: avers and support thereof the 18. Der6ed. The allegations set forth in paragraph 18 constitute conclusions of law to which no response is required. 19. No response required, this is a reservation of defenses available under the Pennsylvania Comparative Negligence Act. To the extent that a response is deemed necessary, the averments are specifically de~ed. 20. (a) - (f) Denied. The averments set forth in paragraph 20 (a) through (0 constitute conclusions of law to which no response is required. To the extent they are deemed averments of fact, they are specifically denied. 21. Denied. The averments set forth in paragraph 21 constitute a conclusion of law to which no response is required. 22. Denied. The averments set forth in paragraph 22 constitute a conclusion of law to which no response is required. Denied. The averments set forth in paragraph 23 constitute a conclusion of law to which no response is required. To the extent they are deemed averments of fact, they are specifically denied. 24. Denied. The averments set forth in paragraph 24 constitute a conclusion of law to which no response is required. To the extent they are deemed averments of fact, they are specifically denied. 25. Denied. The averments set forth in paragraph 25 constitute a conclusion of law to which no response is required. To the extent that they are deemed averments of fact, they are specifically denied. 26. Denied. The averments set forth in paragraph 26 constitute a conclusion of law to which no response is required. 2 27. Denied. The averments set forth in paragraph 27 constitute a conclusion of law to which no response is required. To the extent that they are deemed averments of fact, they are specificaJly denied. 28. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 28. 29. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 29. 30. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 30. 31. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 31. 32. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 32. 33. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 33.. Denied. The averments set forth in paragraph 34 constitute a conclusion of law to which no response is required. To the extent they are deemed averments of fact, they are specifically denied. 3 35. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 35. 36. Denied. The averments set forth in paragraph 36 constitute a conclusion of law to which no response is required. 37. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 37. 38. Denied. The averments set forth in paragraph 38 constitute a conclusion of law to which no response is required. To the extent they are deemed averments of fact they are specifically denied. 39. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 39. 40. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 40. 41. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 41. 42. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment in paragraph 42. 4 43. Denied. The averments set forth in paragraph 43 constitute a conclusion of law to which no response is required. To the extent they are deemed averments of fact they are specifically denied under Rule 1029. WHEREFORE, Plaintiff respectfully requests judgment in her favor as set forth in Plaintiff's Complaint. Respectfully submitted, Nestico, Dru ~y & Hildabrand, LLP Anthony J.'l~ co, Esquire 840 East Ch, ate Avenue Hershey PA 17033 717-533-5406 I.D. 58868 5 CERTIFICATE OF SERVICE I, Anthony J. Nestico, Esquire, of the law firm of Nestico & Druby, L.L.P., hereby certify that on the /f~day of April, 2003, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Joseph F Murphy, Esquire Marshall, Dennehy, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17110 Attor~mys for Defendants Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 Attorneys for Additional Defendant ~~~J ~o, Esquire An ')~~ VERIFICATION I Anthony J. Nestico, Esquire, counsel for Plaintiff hereby certify that the verification of the Plaintiff could not be obtained within the time allowed for the filing of this pleading. Therefore, I, as counsel, hereby verify that, upon information and belief, the statements made in the foregoing document are true and correct based upon the information available to me. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. fi4904, relating to unsworn falsification to authorities. 6 HILARY SUNDAY : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND cOUNTY, PENNSYLVANIA : V, HiTREBORSQUARE LTD, and : NO. 2001-2534 BURGER KING CORPORATION: Defendants : CIVIL ACTION - LAW V. : JURY TRIAL DEMANDED SYGMA, Additional Defendant : pRAECIPE FOR ENTRY OF APPEARANCE_ TO THE PROTHONOTARY: Kindly enter the appearance of undersigned counsel on behalf of Plaintiff Hilary Sunday. Respectfully submitted, Nestico, Druby & Hildabrand, LLP Douglas Walmer Attorney I.D. No. 89731 840 East Chocolate Avenue Hershey, Pennsylvania 17033 (717) 533-5406 (717) 533-5717 Attorney for Plaintiff Date: ~.\~-c~ CERTIFICATE OF S~RVICg~ I, Douglas L. Walmer, Esquire, of the law firm of Nestico ~ Druby, L.L.P., hereby certify that on the _~]~2_ day of April, 2003, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Joseph F Murphy, Esquire Marshail, Dennehy, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17110 Attorn~ for D~f~m~mts Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 Attorn~ for ,~tditionat D~f~dant ~ouglas L. Waimer, Esquire HILARY SUNDAY, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2001-2534 TREBOR SQUARE LTD, and BURGER KING, CORPORATION, Defendants CIVIL ACTION - LAW v. JURY TRIAL DEMANDED SYGMA, DUERSON FOODS, LLC, MICHAEL FOODS SALES/NORTHERN STAR, a subsidiary of MICHAEL FOODS, INC., and SCHREIBER FOODS, INC., Additional Defendants ENTRY OF APPEARANCE TO: PROTHONOTARY Please enter the appearance of Jeffrey B. Rettig, Esquire, and Hartman, Osborne & Rettig, P.C., on behalf of Additional Defendant, Michael Foods Sales/Northam Star, in regard to the above-captioned action. Respectfully submitted, HARTMAN, OSBORNE & RETTIG, P.C. Harrisburg, PA 17101 (717) 232-3046 Attorney for Additional Defendant, Michael Dated: Foods Sales/Northern Star CERTIFICATE OF SERVICE I, Jeffrey B. Rettig, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Anthony Nestico, Esquire Nestico & Droby, LLP 840 East Chocolate Avenue Hershey, PA 17033 (Attorney for Plaintiffs) Joseph F. Murphy, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road Suite B Harrisburg, PA 17112 (Attorney for Defendants) Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 (Attorney for Additional Defendant, SYGMA) HARTMAN, OSBORNE & RETTIG, P.C. B~Byy ~..'' ~igfi'ey B. Rettis,~j~qu're [//Supreme Ct. I.D. ~19616 ~/ 126-128 Walnm Street Harrisburg, PA 17101 (717) 232-3046 _ Michael Foods Sales/Nonhero Star ROBERT J. MeDADE, ESQIYlRE ATTORNEY FOR DEFENDANT, Attorney I.D. No: 55690 SCHREIBER FOODS, INC. LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (61o) 6ST-S3O3 HILARY SUNDAY CUMBERLAND COUNTY v. COURT OF COMMON PLEAS TREBOR SQUARE, LTD. and NO.: 2001-2534 BURGER KING CORPORATION ¥. SYGMA~ DUERSON FOODS, LLC., MICHAEL FOODS SALES/NORTHERN STALL, a subsiduary of MICHAEL FOODS, INC. and SCHREIBER FOODS, INC. TRIAL BY JURY OF 12 DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above captioned roarer on behalf of Defendant, Schreiber Foods, Inc. LAW OFFICES OF MICHAEL W. CASEY ROBER~.~JMcDADE, ESQUIRE Attorney for Defendant, Schreibcr Foods, Inc. ATTORNEY FOR DEFENDANT, ROBERT J. McDADE, ESQUIRE SCHREIBER FOODS, INC. Attorney I.D. No: 55690 LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 cotn rrv___ AY /COURT OF COMMON PLEA~ v. ~NO.: 2001-2534 TREBOR SQUARE, LTD. and BURGER KING CORPORATION ¥. SYGMA, DUERSON FOODS, LLC., MICHAEL FOODS SALES/NORTHERN STAR, a subsiduary of MICHAEL FOODS, INC. and SCHREIBER FOODS, INC. TRIAL BY JURY OF 12 DEMANDED DEMAND lrOR .IURY TRIAL Tv~lve (12) m~mbers, exclusive of alternates, arc h~by demanded by D~f~adant, Solgeiber Foods, Inc., in tl~ abov~ captionad matter. ~L~AW OFFICES OF MICHAEL W. CASEY Attorney fch~ D~fendant, Sohreiber Foods, Inc. IN THE COURT OF COIVI1VION PLEAS CUMBERLAND COUNTY, pENNSYLVANIA HILARY SUNDAY, Plaintiff : Civil Action - Law : : No. 2001-2534 V. TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded : KING, CORPORATION, : Defendants V. SYGMA, Additional Defendant : NEW MATTER A~v n~,, ,' ....... 17. Answering Defendant incorporates hereto by reference tts Answer to PlamUffs Complaints and its loinder Complaint against Additional Defendant Sygma as though the same were sot forth herein at length. 18. Admitted. 19. Admitted. 20. Admitted. 21. Admitted. 22. AdmiRed. 23. Admitted. 24. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the Ruth of the averments set forth herein. Accordingly, the same are denied. Suict proof being demanded at trial. 25. The averments contained in these paragraphs arc legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein arc denied generally pursuant to Pa. R.C.P. 1029(e). 26. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e). 2'/. The averments contained in these paragraphs are legal conclusions to which no response is required. To thc extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e). 28. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of the averments set forth herein. Accordingly, thc same are denied. Strict proof being demanded at trial. 29. Aider reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of thc averments set forth herein. AccordinglY, the same arc denied. Strict pwofbeing demanded at trial. 30. After reasonable investigation, Answerinl~, Defendant is without sufficient knowledge and/or information to form a belief as to thc truth of thc averments set forth herein. AccordinglY, the same are denied. Strict proof being demanded at trial. 3 !. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. S~ict pwof being demanded at trial. 32. After reasonable investigation, Answering Defendant is without sufficient knowledge end/or information to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. Strict pwofbeing demanded at trial. 33. After reasonable investigation, Answering Defendant is without sufficient knowledge end/or information to form a belief as to the truth of thc averments set forth herein. Accordingly, the same are denied. Strict pronfbeing demanded at trial. 34. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e). 35. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. Strict proof being demanded at trial. 36. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(c). 3'I. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the Ruth of the averments set forth he,in. Accordingly, the same are denied. Strict pruofbeing demanded at trial. 38. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is rcquired, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e). 39. The averments contained in these paragraphs are denied generally pursuant to Pa. R.C.P. 1029(e). To the extent that a specific answer is required, the averments contained in these paragraphs are denied. 40. The averments contained in these paragraphs are denied generally pursuant to Ps. R.C.P. 1029(e). To the extent that a specific answer is required, the averments contained in these paragraphs are denied. 41. After reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. Strict proof being demanded at trial. 42. A/ter reasonable investigation, Answering Defendant is without sufficient knowledge and/or information to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. Strict pwofbeing demanded at Irial. 43. After reasonable investigation, Answering Defendant is withoul sufficient knowledge and/or int'onnation to form a belief as to the truth of the averments set forth herein. Accordingly, the same are denied. Strict proof being demanded at trial. WHEREFORE, Original Defendants respectfully reques! that judgement be entered in favor of Original Defendants and against all other parties. 44. Answering Defendant incorporates herein by reference its Answer to Plaintiffs Complaints and its loinder Complaint against Additional Defendant Sygma as though the same were set forth herein at length. 45. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e) 46. The averments contained in these paragraphs are legal conclusions to which no response is required. To the extent that a response is required, the averments contained herein are denied generally pursuant to Pa. R.C.P. 1029(e) WHEREFORE, Original Defendants respectfully request that judgement be entered in favor of Original Defendants and a~ainst all other parties. Respectfully subm/tted, MARSHALL, DENNEHEY, WAR_NEE, COLEMAN & GOC~IN " i ., ~ i ~' . I.D~. No. 78119 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 ,4ttorney for Original Defendants, V)5_A\LiAB~pM~LLPG\120984x.Si3M\14183V)0180 VERIFICATION The undersigned hereby verifies that the statements in the foregoing Reply to New Matter and New Matter Cross-Claim are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Reply to New Matter and New Matter Cross-Claim is that of counsel and not my own. I have read the Reply to New Matter and New Matter Cross-Claim, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Reply to New Matter and New Matter Cross-Claim are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Robert Russoli RUSSOLI ENTERPRISES, INC. DATE: ~.O5_A\L.iA BXJPM\LLPG\1209q0~SGM\I4~83~00180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILAKY SUNDAY, : Plaintiff : Civil Action - Law : : No. 2001-2534 V. . RUSSOLI ENTERPRISES, INC. and BURGER : lury Trial Demanded : K. IN(3, CORPORATION, Defendants : Certificate of Service. I hereby c~tify that I have served upon all persons listed halow a true and correct copy of the foregoing document via U.S. mail, postage prepaid this .~ _ day of April, 2003. Anthony $. Nestico, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue H~shey, Pa 17033 Thomas Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 ~CHAEL MINNICH V)5_A\LIAB'dPM\LLPG~120957~SGM\141 g3~00! 80 To The Plaintiff and Co-efendants: You are hereby notified to answer the enclosed Answer with New Matter within twenty (20) days from service entered against you. ROBERT J. MeDADE, ESQUIRE ATTORNEY FOR DEFENDANT, Attorney I.D. No: 55690 SCHREIBER FOODS, INC. LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 HILARY SUNDAY CUMBERLAND COUNTY v. COURT OF COMMON PLEAS TREBOR SQUARE, LTD. and NO.: 2001-2534 BURGER KING CORPORATION V. SYGMA, DUERSON FOODS, LLC., MICHAEL FOODS SALES/NORTHERN STAR, a subsiduary of MICHAEL FOODS, INC. and SCHREIBER FOODS, INC. TRIAL BY JURY OF 12 DEMANDED ANSWER OF ADDITIONAL DEFENDANT, SCHREIBER FOODS, INC., TO THE JUINDi~K CUMI'LAINI Ol~' ~YI.~MA, 'I'O~E'I'llEIt WI'Ill NEW MATTER AND NEW MA'I"I'ER FUIL.NUA.N'I' TO FA. bt.C.F. 2252((!) Additional defendant, Schreiber Foods, Inc. (hereinafter referred to as "answering additional defendant"), by its attorneys, the Law Offices of Michael W. Casey, hereby files this answer to the $oinder Complaint of additional defendant, SYGiVLA, in accordance with the numbered paragraphs as follows: 1. Admitted. To the extent that the allegations ofthat Complaint can be deemed as directly against answering additional defendant, said allegations are denied. The remaining allegations of that Complaint are conclusions of law to which no response is required. 2=9. Answering additional defendant is without knowledge or information sufficient to form a belief as to the truth in regards to these paragraphs. 10. Admitted. 1 i. To the extent the allegations of paragraph 11 are of fact, same are admired. The remaining allegations ofparagraph 11 are conclusions of law to which no response is required. 12. It is admitted that answering additional defandant manufactures, produces, prepares, sells, supplies, distributes certain cheese products and that same are supplied to defendant, Burger King. Answering additional defendant is without knowledge or information sufficient to form a belief as to the truth of the ~raaining averments of this paragraph. 13=16. Answering additional defendant is without knowladge or information sufficient to form a belief as to the truth ofthe averments of these paragraphs. 17=19. Admitted. This is what plaintiffallegas in h~r Complaint. 20. It is admitted that SYGMA incorporates paragraphs I through 19 of their Complaint herein by reference, and in response thereto, answering additional defendant incorporates as responses to each of these paragraphs as if same were set forth more fully herein at length. 21-41. The allegations of these paragraphs are directed to a party other than answering additional defendant, and therefore, no response is required. To the extent the allegations in these paragraphs may be deemed to be directed as against answering additional defendant, and are factual in nature, same are denied. The remaining allegations of these paragraphs are conclusions of law to which no response is required. WHEREFORE, answering additional defendant, Schreiber Foods, Inc., hereby demands judgment to be entered in its favor, a dismissal of the Joinder Complaint, together with all additional costs, fees and other relief deemed reasonable by this Honorable Court. 42. It is admitted that SYGMA incorporates paragraphs I through 41 ofthis Complaint as if same were set forth more fully herein at length, and in response thereto, answering additional defendant incorporates its responses to paragraphs 1 through 41 of this answer as if same were set forth more fully herein at length. 43. Denied. It is denied that answering additional defendant was negligent, careless and/or ~ckless in manufacturing as specifically described in this paragraph and its subparagraphs, or in any other fashion. To the contrary, it is averred that answering additional defendant has at all times acted in a safe, proper, and reasonable manner. Further, it is denied that answering additional defendant actively caused, legally or otherwise, any injury or damage to the plaintiffor any other party related to this matter. The remaining allegations of this paragraph, and its subparts, are conclusions of law to which no response is required. 44. Denied. Answering additional defendant denies that it was negligent, careless and/or reckless in any fashion, and avers, to the contrary, that, at all times pertinent hereto, it acted in a safe, proper, and reasonable manner. By way of further answer, it is specifically denied that answering additional defendant acted to cause, legally or otherwise, any injury or damage to plalntiffor anyone else related to this matter. The remaining allegations of paragraph 44 are conclusions of law to which no response is required. 45-47. Denied. By further answer, thc allegations of these paragraphs are conclusions of law to which no response is ~quired. WHEREFORE, answering additional defendant, Schreiber Foods, Inc., hereby demands judgmant to be entered in its favor, a dismissal of the Joinder Complaint, together with ali costs, fees, and/or relief deemed reasonable by this honorable court. 48. It is admitted that SYGMA incorporates paragraphs I through 47 of this Complaint by reference as if same were set forth more fully herein at length. In response thereto, answering additional defendant hereby incorporates its responses to paragraphs ! through 47 as set forth in this answer, as if same were set forth herein at length. 49. It is admitted that SYGMA incorporates paragraphs 23 through 26 of plaintiff's Complaint herein, and in response thereto, also to allegations, to the extent that they are factual in nature and can be attributed to answering additional defendant, are denied. 50-52. Denied. By way of further answer, the allegations of these paragraphs are conclusions of law to which no response is required. WHEREFORE, answering additional defendant, Schrciber Foods, Inc., hereby demands judgment be entered in its favor, with the dismissal of the within $oinder Complaint, together with all other costs, fees, or other relief deemed reasonable by this honorable court. NEW MATTER 53. Plaintiff's claims are barred as they fail to state a cause of action upon which relief can be granted. 54. Plaintiff's claims are barred under the provisions of the Pennsylvania Comparative Negligence Act. SS. Plaintiff's claims relating to breach of warranty are barred as plaintiffhas failed to plead the reliance necessary for such claim. WHEREFORE, answering additional defendant, Schreiber Foods, Inc., hereby demands judgment in its favor, a dismissal of the within Joinder Complaint, together with all costs, fees, and other relief deemed reasonable by this honorable court. NEW MATTER PURSUANT TO 2252(d) Answering additional defendant asserts that if it is held liable to plaintiff for all or part of any injuries or damages as claimed by plaintiff, all other defendants and/or additional defendants named in this matter are solely liable to plaintiff, jointly and/or severely liable with answering defendant, liable over to answering defendant and/or liable to answering defendant by way of contribution and/or indemnity, in common law, contractfally or otherwise. WHEREFORE, answering additional defendant, Schreiber Foods, Inc., hereby demands judgment in its favor and against all other defendants and additional defendants, consistent with the above new matter pursuant to 2252(d), together with all other appropriate fees, costs, and relief as deemed reasonable by this Honorable Court. LAW OFFICES OF MICHAEL W. CASEY Schreibor Foods, Inc. VERIFICATION Robert J. Prueas, Treasurer of Schreiber Foods, Inc., hereby states that Schreiber Foods, Inc. is a party in this action and verifies that the statements made in the foregoing Answer to Plaintiff's Complaint with New Matter and New Matter Pursuant to 2252(d) are true and correct to the best ofhis knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Robert J. Pruess Treasurer Re: SundBy-RJM ROBERT J. MeDAl)E, ESQUIRE ATTORNEY FOR DEFENDANT, Attorney I.D. No: 55690 SCHREIBER FOODS, INC. LAW OFFICES OF MICHAEL W. CASEY 150 South Warner Road, Suite 270 King of Prussia, PA 19406 (610) 687-8303 "I-tlLAR y SUNDAY CUMBERLAND COUNTY v. COURT OF COMMON PLEAS TREBOR SQUARE, LTD. and NO.: 2001-2534 BURGER KING CORPORATION V. SYGMA, DUERSON FOODS, LLC., MICHAEL FOODS SALES/NORTHERN STAR, a subsiduary of MICHAEL FOODS, INC. and SCHREIBER FOODS, INC. RIAL BY JURy OF 12 DEMANDED CERTIFICATE OF SERVICE I, Robert J McDade, Esquire hereby certify that a true and correct copy of the Answer of Additional Defendant, Schreiber Foods, Inc., to the $oinder Complaint of Sygma, Together with New Matter and New Matter Pursuant to Pa.R.C.P. 2252(d) was sent via First Class United States Mail, postage prepaid to the following counsel: Anthony Nestico, Esquire Joseph F. Murphy, Esquire Nastico & Druby, LLP Marshall Dennehey Warner Coleman 840 East Chocolate Avenue 4200 Crums Mill Road, Suite B Hershey, PA 17033 Harrisburg, PA 17112 Thomas A. Lang, Esquire Michael Foods Sales/Northern Star Peters & Wasilefski 3171 Fifth Street, S.E. 2931 North Front Street Minneapolis, MN 55414-3374 Harrisburg, PA 17110 Duerson Foods, LLC 100 Tri-State International Suite I 15 Lincolnshire, IL 60069 LAW' OFFICES OF MICHAEL W. CASEY Attorney for Defendant, Schreiber Foods, Inc. ~0$_A\LIAB~PM~LLPGH 24995~RYM~I4183~00180 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law v. : No. 2001-2534 : TREBOR SQUARE, LTD. and BURGER : Jury Trial Demanded KING, CORPORATION, : Defendants : V. SYGMA : : Additional Defendant : PRAECIPE FOR DISCONTINUANCE TO: Prothonotary Please mark the above referenced matter settled, ended and discontinued with prejudice. DATE: BY: <E~..~ ~,fj, .~. - Dougla~'~,. Walmer, Esquire NESTICO & DRUBY, LLP 840 East Chocolate Avenue Hershey, PA 17033 ~4ttorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HILARY SUNDAY, : Plaintiff : : Civil Action - Law : v. : No. 2001-2534 : RUSSOLI ENTERPRISES, INC. and BURGER : Jury THai Demanded KING, CORPORATION, : Defendants : Certificate of Service I hereby certify that I have served upon all persons listed below a true and correct copy of the foregoing document via U.S. mail, postage prepaid this ~ day' of June, 2003 Thomas Lang, Esquire Douglas L. Walmer, Esquire Peters & Wasilefski NESTICO & DRUBY, LLP 2931 North Front Street 840 East Chocolate Avenue Harrisburg, PA 17110 Hershey, Pa 17033 Robert J. McDede, Esquire Jeffrey B. Rettig, Esquire LAW OFFICES OF MICHAEL W. CASEY HARTMAN, OSBORN, & RETTIG, P.C. Walnut Hill Plaza 126-128 Walnut Street 150 South Warner Road Harrisburg, PA 17101 Suite 270 King of Prussia, PA 19406