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11-5234
SHERIFF'S OFFICE OF CUMBERLAND QQIVW)tE ;F THE PROTHONOTARY Ronny R Anderson SheriffQSiyt,, 2011 JUL 12 AM 8: 4 4 Jody S Smith Chief Deputy CUMBERLAND COUNTY Richard W Stewart PENNSYLVANIA Solicitor, :F «ziF HNS Management, LLC vs. Jairam 7, Inc. Case Number 2011-5234 SHERIFF'S RETURN OF SERVICE 06/30/2011 03:45 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on June 30, 2011 at 1545 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Jairam 7, Inc., by making known unto Ramesh Parikh, Manager of Jairam 7, Inc. at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $34.44 July 01, 2011 ?A TIM K, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF ;c1 Cnun'ySuite Shea cl. Te!roSOft. I:"C. N rT1 CO M r -n rn James N. Clymer, Esquire ::0 r ?r Cno Attorney I.D. #: 27151 CLYMER, MUSSER, BROWN & CONRAD, P.C. C `r 408 West Chestnut Street ) ca fir- T Lancaster, PA 17603 _-? -- =° (717) 299-7101 Attorneys for Defendants HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA V. JAIRAM 7, INC., Defendants Docket No.: 11-5234 CIVIL ACTION - AT LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT Pursuant to Pennsylvania Rule of Civil Procedure 1028 and Cumberland County local rules, Defendants, Jairam 7, Inc. (hereinafter referred to as "Defendants"), by and through their undersigned counsel, file the within preliminary objections to Plaintiffs' Complaint as follows: 1. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER - FAILURE TO STATE A CLAIM FOR FRAUDULENT MISREPRESENTATION (COUNT III). In Count III of their Complaint, Plaintiffs allege that Defendants are liable for fraudulent misrepresentation. 2. To establish a cause of action for fraudulent misrepresentation, the plaintiff must allege the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999). 3. Moreover, under Pa.R.C.P. 1019(b), allegations of fraud must be pled with particularity. Martin v. Lancaster Battery Co., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992) (an allegation of fraud must "explain the nature of the claim to the opposing party so as to permit the preparation of a defense" and be "sufficient to convince the court that the averments are not merely subterfuge.") 4. A promise to do something in the future, which promise is not kept, is not fraud. Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977). 5. In this matter, Plaintiffs have not pled all of the elements of fraudulent misrepresentation. 6. Plaintiffs' allegations in their Complaint do not allege that Defendants made an intentionally false misrepresentation needed to support a cause of action for fraudulent misrepresentation. 7. Plaintiffs' claim for fraudulent misrepresentation lacks the legal sufficiency needed to survive a demurrer. 8. The court should sustain Defendants' preliminary objection to Plaintiffs' claim of fraudulent misrepresentation. WHEREFORE, Defendants pray that this Court sustain their preliminary objection to Count III of the Complaint and dismiss that count with prejudice. 2 II. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER - FAILURE TO STATE A CLAIM FOR PUNITIVE DAMAGES (COUNT III). 9. In Count III of Plaintiffs' Complaint at paragraph 66, Plaintiffs allege a claim for punitive damages. 10. Plaintiffs' fraudulent misrepresentation claim in Count III against Defendants fails under the gist of the action doctrine which "precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims." Etoll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). 11. "[A] contract action may not be converted into a tort action simply by alleging that the conduct in question was done wantonly." Phico Ins. Co. v. Presbyterian Medical Services Corp., 663 A.2d 753, 757 (Pa. Super. 1995). 12. A tort claim is barred where "the duties allegedly breached were created and grounded in the contract itself ...[or] the tort claim essentially duplicates a breach of contract claim or the success of [the tort claim] is wholly dependent on the terms of the contract." Etoll, Inc., 811 A.2d at 19. 13. As stated in Plaintiffs' Complaint, the only duty allegedly breached by Defendant was its alleged contractual duty pursuant to the Joint Venture Agreement. 14. A claim that a defendant may have negligently, recklessly, or intentionally breached that contractual duty does not give rise to a tort claim, but instead provides a basis for a breach of contract claim only. 3 11 15. Under Pennsylvania law, punitive damages are not awardable for breach of contract. The Flynn Company v. Peerless Door & Glass, Inc., 2002 WL 1018937, *3 (Pa.Com.Pl. 2002). 16. Accordingly, Plaintiffs' claim for punitive damages must be dismissed. WHEREFORE, Defendants pray that this Court sustain their preliminary objection to paragraph 66 in Count III of Plaintiffs' Complaint and all references to punitive damages hereby are stricken from the Complaint. III. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER - FAILURE TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS (COUNT IV). 17. In count IV of Plaintiffs Complaint, Plaintiffs purport to state a claim for tortious interference with prospective contractual relations. 18. Under Pennsylvania law, a claim for tortious interference with prospective contractual relations requires proof of the following four elements: "(1) a prospective contractual relation; (2) a purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4)the occasioning of actual damage resulting from the defendant's conduct." Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 471 (Pa. 1979). 19. The Pennsylvania "economic loss doctrine" forecloses an action in tort for economic loss resulting from a breach of contract. See Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618-19 (3d Cir. 1995). 4 20. Accordingly,"[t]here is no cause of action for tortious interference where the plaintiffs business relationships with third parties are adversely affected [merely] as a consequence of the defendant's breach of contractual obligations to the plaintiff." Valley 18 Forge Convention & Visitors Bureau v. Visitor's Servs., Inc. , 28 F. Supp. 2d 947, 951 (E.D. Pa. 1998) (defendant's breach of contract to mail promotional material to prospective tourists and conventioneers did not support claim for tortious interference with prospective contractual relations. Glazer v. Chandler, 200 A.2d 416, 418 (Pa. 1964) (no tortious interference claim when interference with third-party contracts was only an "incidental consequence" of breach of contract). 21. In order to assert a tortious interference claim in addition to a breach of contract claim, a plaintiff must show defendant's intent to interfere with plaintiffs other contracts. See Valley Forge, 28 F. Supp. 2d at 951. 22. Moreover, "anything that is prospective in nature is unnecessarily uncertain ... [there] must be something more than a mere hope or the innate optimism of a salesman." Glenn v. Point Park College, 272 A.2d 895, 898-99 (Pa. 1971). 23. In this matter, Plaintiffs have not alleged facts suggesting Defendants' intent to interfere with Plaintiffs' prospective contracts for events at the banquet facility. 24. Plaintiffs have not identified or enumerated any entities that would have subsequently contracted with Plaintiffs to utilize the banquet facility that did not do so because of Defendants' alleged breach of contract. 5 25. The allegations in Plaintiffs' Complaint only claim that Defendants allegedly breached their contract with Plaintiffs and that, as an incidental consequence thereof,, Plaintiffs' business relationships with unknown third parties have been affected. 26. Plaintiffs' tortious interference claim is indistinguishable from its breach of contract claim. 27. Accordingly, Plaintiffs' claim for tortious interference with prospective contractual relations does not survive preliminary objections. WHEREFORE, Defendants pray that this Court sustain their preliminary objection to Count N of the Complaint and dismiss that count with prejudice. Respectfully submitted, CLYMER, MUSSER, BROWN & CONRAD, P.C. By: GVVr&L? .,2 Ja es N. Clymer, Esquire A torneys for Defendants Date: 7 - - I 6 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing Preliminary Objections upon the following person(s) and in the following manner pursuant to the Pennsylvania Rules of Civil Procedure. Via First Class Mail and Addressed as Follows: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 CLYMER, MUSSER, BROWN & CONRAD, P.C. - "" .0-i , /? ) fl? ? . - I '- / / By: _ J es N. Clymer, Esquir Attorneys for Defendants Attorney I.D. # 27151 408 W. Chestnut Street Lancaster, PA 17603 (717) 299-7101 Date: "2-(q-( 7 , SERRATELLI, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 facsimile Email: PMacdonald-Matthesna ssbc-law.com Attorneys for Plaintiff i= O? NO OTAR's` U -2 AV 10- ^''.? -RLAND COUNTY NfENNSYI-YAN1A HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/Wa SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. JAIRAM 7, INC., Defendant. IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 2011-5234 CIVIL ACTION - AT LAW JURY TRIAL DEMANDED PLAINTIFF'S REPLY IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Plaintiffs, HMS Management, LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant (hereinafter "Plaintiff') by and through its counsel, Serratelli, Schiffman & Brown, P. C., and files its Reply in Opposition to the Preliminary Objections filed by Defendant, Jairam 7, Inc. (hereinafter "Defendant") to Plaintiff s Complaint, and in support thereof avers as follows: I. REPLY IN OPPOSITION TO FIRST PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III OF PLAINTIFF'S COMPLAINT 1. Admitted. 2. Denied. The averments set forth in paragraph 2 of Defendant's first preliminary objection state conclusions of law to which no response is required. 3. Denied. The averments set forth in paragraph 3 of Defendant's first preliminary objection state conclusions of law to which no response is required. In the event that it is later judicially determined that an answer is so required, Plaintiff has properly pled its allegations of fraud with the required particularity. 4. Denied. The averments set forth in paragraph 4 of Defendant's first preliminary objection state conclusions of law to which no response is required. 5. Denied. The averments set forth in paragraph 5 of Defendant's first preliminary objection state conclusions of law to which no response is required. 6. Denied. The averments set forth in paragraph 6 of Defendant's first preliminary objection state conclusions of law to which no response is required. 7. Denied. The averments set forth in paragraph 7 of Defendant's first preliminary objection state conclusions of law to which no response is required. 8. Denied. The averments set forth in paragraph 8 of Defendant's first preliminary objection state conclusions of law to which no response is required. In the event that it is later judicially determined that an answer is so required, it is denied that the Court should sustain Defendant's first preliminary objection to Count III of Plaintiff s Complaint. WHEREFORE, Plaintiff respectfully requests that this Honorable Court overrule Defendant's first preliminary objection to Count III of Plaintiffs Complaint, and direct Defendant to file an Answer to Plaintiff s Complaint forthwith, and further award Plaintiff all such other relief as is proper and just. 2 II. REPLY IN OPPOSITION TO SECOND PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III OF PLAINTIFF'S COMPLAINT RE: PUNITIVE DAMAGES 9. Admitted in part and denied in part. It is denied that Count III of Plaintiff's Complaint is a stand alone count for "punitive damages". To the contrary, and as acknowledged by Defendant in paragraph 1 of its Preliminary Objections, Count III of Plaintiff's Complaint states a cause of action for fraudulent misrepresentation. 10. Denied. The averments set forth in paragraph 10 of Defendant's second preliminary objection state conclusions of law to which no response is required. 11. Denied. The averments set forth in paragraph 11 of Defendant's second preliminary objection state conclusions of law to which no response is required. 12. Denied. The averments set forth in paragraph 12 of Defendant's second preliminary objection state conclusions of law to which no response is required. 13. Denied. The averments set forth in paragraph 13 of Defendant's second preliminary objection state conclusions of law to which no response is required. 14. Denied. The averments set forth in paragraph 14 of Defendant's second preliminary objection state conclusions of law to which no response is required. 15. Denied. The averments set forth in paragraph 15 of Defendant's second preliminary objection state conclusions of law to which no response is required. By way of further reply, as acknowledged by Defendant in its Preliminary Objections Count III of Plaintiff's Complaint is not a claim for breach of contract but rather is a claim for fraudulent misrepresentation for which a claim for punitive damages is properly made. 3 16. Denied. It is denied that Plaintiff's claim for punitive damages must be dismissed. WHEREFORE, Plaintiff respectfully requests that this Honorable Court overrule Defendant's second preliminary objection to Count III of Plaintiff's Complaint, and direct Defendant to file an Answer to Plaintiff's Complaint forthwith, and further award Plaintiff all such other relief as is proper and just. III. REPLY IN OPPOSITION TO THIRD PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT IV OF PLAINTIFF'S COMPLAINT 17. Admitted. 18. Denied. The averments set forth in paragraph 18 of Defendant's third preliminary objection state conclusions of law to which no response is required. 19. Denied. The averments set forth in paragraph 19 of Defendant's third preliminary objection state conclusions of law to which no response is required. 20. Denied. The averments set forth in paragraph 20 of Defendant's third preliminary objection state conclusions of law to which no response is required. 21. Denied. The averments set forth in paragraph 21 of Defendant's third preliminary objection state conclusions of law to which no response is required. 22. Denied. The averments set forth in paragraph 22 of Defendant's third preliminary objection state conclusions of law to which no response is required. 23. Denied. It is denied in this matter that Plaintiff's have not alleged facts suggesting Defendants' [sic] intent to interfere with Plaintiff's prospective contracts for events at the banquet facility. 4 24. Denied. The averments set forth in paragraph 24 of Defendant's third preliminary objection state conclusions of law to which no response is required. 25. Denied. The averments set forth in paragraph 25 of Defendant's third preliminary objection state conclusions of law to which no response is required. 26. Denied. The averments set forth in paragraph 26 of Defendant's third preliminary objection state conclusions of law to which no response is required. 27. Denied. The averments set forth in paragraph 27 of Defendant's third preliminary objection state conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court overrule Defendant's second preliminary objection to Count IV of Plaintiff's Complaint, and direct Defendant to file an Answer to Plaintiff's Complaint forthwith, and further award Plaintiff all such other relief as is proper and just. Respectfully submitted, ",-,& UI?4 Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN & BROWN, PC 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorney for Plaintiff Dated: August 1, 2011 5 I, Sahar Mater, Member of HNS Menagematt LLC do hereby verify that the facts set fads in the foregoing RMly in Opposition to PmUmimy Objec dom filed by Defendant, Jaimm 7, Inc. arc true and correct to the best of my knowledge or infonuflon and belief. This vaifimdm is made pursuant to IS Pa. C.S. 149K rekting to vamm falsifications to authorities. Hvs _.. _ Date: Saba Malec, Member CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that a true and correct copy of Plaintiff's Reply in Opposition to Defendant's Preliminary Objections to Plaintiff's Complaint has been served upon 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 August, 2011, and addressed as follows: JAMES N. CLYMER, ESQUIRE CLYMER, MUSSER, BROWN & CONRAD, P.C. 408 WEST CHESTNUT STREET LANCASTER, PA 17603 DEFENDANT'S COUNSEL ki ,N_pAM P tel. Ate.(. N" Paige Macdonald-Matthes, Esquire 7 ap liq PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) " ;)RO I HONOTAk TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) 2 J 11 AUG - 2 AM I0; ' 8 --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) CUMBERLAND COUNTY E?N$YLVANIA HNS Management, LLC t/a Country Oven Restaurant f/k a a ar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant vs. Jairam, 7, Inc. No 2011 5234 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs' Complaint.; Plaintiffs' RPp1y in 01annsition to nefendant's Preliminary Objections to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Paige Macdonald-Matthes, Esquire 2080 Linglestown Road, Suite 201, HBG PA 17110 (Name and Address) James N. Clymer, Esquire; 408 West Chestnut Street, Lancaster, PA 17603 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 26, 2011 Signature Paige Macdonald-Matthes, Esquire Print your name Plaintiffs Date: Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, PLAINTIFF V. JAIRAM 7, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-5234 CIVIL IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE GUIDO, J., EBERT, J., and MASLAND, J. Background Pending before this Court is Defendant's, Jairam 7, Preliminary Objections to Plaintiff's Complaint. The brief procedural history relevant to the preliminary objections is provided. On June 23, 2011, Plaintiff, HNS Management, LLC, filed a Complaint against Defendant alleging three counts: I. Breach of Contract, III. Fraudulent Misrepresentation, and IV. Tortious Interference with Prospective Contractual Relations.' Defendant has filed Preliminary Objections in the nature of a demurrer to counts III and IV. Discussion Standard of Review for Preliminary Objections "A reviewing court must decide the merits of the preliminary objections solely on the basis of the pleadings and not on testimony or evidence outside the complaint." Sullivan v. Chartwell Investment Partners, LP, 873 A.2d 710, 714 (Pa. Super. Ct. 2005) (internal quotations and citations omitted). More specifically, "[a] preliminary objection in the nature of a demurrer tests the legal sufficiency of the complaint." Id. As stated by the Superior Court, the standard of review for deciding preliminary objections in the nature of a demurrer is clear: [A]ll material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Id. (citing Insurance Adjustment Bureau, Inc. v. Allstate Ins., 860 A.2d 1038, 1041 (Pa. Super. Ct. 2004)); see also Birl v. Philadelphia Electric Co., 167 A.2d 472, 475 (Pa. 1960) ("The question to be decided is, not whether the statement of claim is so clear in both form and specification as to entitle plaintiff to proceed to trial without amending it, but whether, upon the facts averred, it shows with certainty that the law will not permit a recovery by plaintiff."). Fraudulent Misrepresentation A claim of fraudulent misrepresentation requires a showing of the following elements: As noted in Plaintiffs Brief, a typographical error was made in labeling the original counts "I., III., IV." within the Complaint. There is no count II. This Court will continue to refer to the counts as they appear on the record in an attempt to avoid confusion. 2 (1) a representation (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury was proximately caused by the reliance. Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 290 (Pa. Super. Ct. 2010). "In order to protect those against whom generalized and unsupported fraud may be levied, the Pennsylvania Rules of Civil Procedure require that fraud be averred with particularity." Youndt v. First National Bank of Port Allegany, 868 A.2d 539, 544 (Pa. Super. Ct. 2005) (q11 n Presbyterian Med. Cen. V. Budd, 832 A.2d 1066, 1072 (Pa. Super. Ct. 2003)); see also Pa. R. Civ. P. 1019(b). Additionally, the Superior Court has stated that, "[t]he pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge." Id. at 544-45. Furthermore, "[f]raud must be proven by evidence that is clear, precise and convincing." Id. And specifically regarding fraudulent misrepresentation, "a plaintiff must set forth the exact statements or actions plaintiff alleges .... Appellants' failure to meet this bare minimum renders their claim for fraud arising from Defendant[`s] [] alleged misrepresentation insufficient as a matter of law." Youndt, 868 A.2d at 545 (internal quotations omitted). Tortious Interference with Prospective Contractual Relations Intentional interference with a contractual relation or tortious interference with a prospective contractual relation requires a showing of the following elements: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of 3 the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct. Ira G. Steffy, 7 A.3d at 288-89. Based upon Defendant's preliminary objections this Court finds it only necessary to address the first two prongs associated with count IV. The first element requires a plaintiff to "allege [with] a reasonable likelihood or probability that an anticipated business arrangement would have been consummated." Cloverleaf Development, Inc. v. Horizon Financial F.A., 500 A.2d 163, 167 (Pa. Super. Ct. 1985). In regards to the second element, the Superior Court has instructed courts to look at six factors enumerated in section 767 of the Restatement (Second) of Torts when determining if a defendant's conduct was improper. Ira G. Stef , 7 A.3d at 289. Those six factors include: 1) the nature of the actor's conduct; 2) the actor's motive; 3) the interests of the other with which the actor's conduct interferes; 4) the interests sought to be advanced by the actor; 5) the proximity or remoteness of the actor's conduct to interference, and 6) the relationship between the parties. Id. (citing Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. 1997)). Analysis Fraudulent Misrepresentation Defendant contends that the complaint lacks the specificity needed to survive a demurrer. At this stage of litigation we find that Plaintiff has pled with sufficient specificity to survive preliminary objections. Plaintiff pled the following relevant facts which we find satisfactory to withstand preliminary objections for specificity at this pre-discovery stage of litigation. See Sullivan, 873 A.2d at 714. Defendant's legal counsel orally convinced plaintiff to provide monies due under the Joint Venture Act ("contract"). (See Pl.s' Compl. ¶¶ 44-45, 48). The monies were placed into 4 an escrow account because Defendant had failed to perform under the contract. Id. 155. Plaintiff delivered the money to Defendant in reliance upon his promise that he would meet to come to a resolution of all problems. Id. ¶¶ 54-55, 60-61. Although various paragraphs of the Complaint refer to the general term "problems," when the term is read in the context of the Complaint in its entirety, the meaning of the term is clear. Id. ¶ 55. Plaintiff has also enumerated within the Complaint multiple instances that specifically point to the section of the contract breached and the actions, or inactions, of Defendant which led to those breaches. Id. ¶¶ 20, 23, 25, 29, 31-32, 35. Additionally, Plaintiff averred that Defendant made the promise fraudulently with the specific intent to induce Plaintiff into providing monies to Defendant.' Id. IT 57, 63, 66; see, e.g., Mirizio v. Joseph, 4 A.3d 1073, 1086 (Pa. Super. Ct. 2010) ("Accordingly, we conclude that since Appellant's tort claims relate to the inducement to contract, they are collateral to the performance of the contracts and therefore, are not barred by the gist-of-the-action doctrine."); College Watercolor Group, Inc. v. William H. Newbauer, Inc., 360 A.2d 200, 206 (Pa. 1976) ("Statements of intention, ... which do not, when made, represent one's true state of mind are misrepresentations known to be such and are fraudulent."). Based upon the averred facts, Plaintiff has satisfied all prongs necessary for a claim of fraudulent misrepresentation. Tortious Interference with Prospective Contractual Relations Defendant contends that: 1) Plaintiff has not sufficiently pled that a prospective contractual relationship exists; 2) Plaintiff has not sufficiently pled that Defendant intended to interfere with a third-party prospective contract; and 3) any loss suffered by Plaintiff is only an z Defendant's argument against the inclusion of punitive damages need not be addressed because fraudulent misrepresentation under count III has survived preliminary objections. 5 incidental consequence of the asserted breach of contract. At this stage of the litigation we find that the demurrer cannot be sustained. Plaintiff pled the following relevant facts which we find are satisfactory to withstand preliminary objections at this pre-discovery stage of litigation. See Sullivan, 873 A.2d at 714. Event coordinators in Carlisle, specifically Mary Jane Ziegler, will no longer book any functions with Plaintiff due to the "leaking roof, the faulty sewer line, the HVAC system, the pest problem and the parking lot[,]" all of which are Defendant's responsibilities. (Pl.s' Compl. ¶ 33). Plaintiff also averred that Defendant's actions, or inactions, were not a mere consequence of a breach of contract claim, but rather were part of a deliberate campaign to harm Plaintiff's prospective contractual relations. See id. ¶ 75. Defendant had prior knowledge of the repercussions on Plaintiffs business due to the problems associated with the banquet hall and intentionally chose to ignore obligations under contract in an effort to interfere with Plaintiff s prospective contracts. See id. ¶¶ 74-75. Plaintiffs allegations go beyond mere incidental consequences from a breach of contract between parties and rise to the level of intentional interference established from Defendant's scienter. Plaintiff has satisfied all of the elements necessary for a claim for tortious interferences with prospective contractual relations. Conclusion This Court finds that at this early stage of litigation Plaintiff has successfully pled enough facts to uphold the counts alleged and place the Defendant on notice to prepare a defense. On the averred facts and inferences deducible therefrom, this Court cannot deny as a matter of law the possibility of recovery. Accordingly the following Order is entered: 6 P?AND ? NOW, this day of , 2011, the Defendant's Preliminary Objections are OVERRULED. By 7 t Edward E. Guido, = Jam' LL-- a r Paige Macdonald-Matthes, Esquire o ; Attorney for Plaintiff 2080 Linglestown Road r. _ ?- Harrisburg, PA 17110 James N. Clymer, Esquire Attorney for Defendant 408 West Chestnut Street Lancaster, PA 17603 Cvp?es A a-'Ied 10)'0111 Sul 7 James N. Clymer, Esquire Attorney I.D. #: 27151 CLYMER, MUSSER, BROWN & CONRAD, P.C. 408 West Chestnut Street Lancaster, PA 17603 (717) 299-7101 Attorneys for Defendants HNS MANAGEMENT, LLC t/a IN THE COURT OF COMMON PLEAS COUNTRY OVEN RESTAURANT f/k/a CUMBERLAND COUNTY SAHAR MATER ENTERPRISES PENNSYLVANIA CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND ? 2 COUNTRY" OVEN RESTAURANT, Plaintiff ?rn CD V. Docket No.: 11-5234 JAIRAM 7, INC., CIVIL ACTION - AT LAW Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 cn ?, ?^" C7 --C -a You are hereby notified to file a written response to the enclosed New Matter and Counter-Claim within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, CLYMER MUSSER BROWN & CONRAD, P.C. Dated: dl?dlll _9y3 -- James N. C I.D. # 27151 408 West Chestnut Street Lancaster, PA 17603 (717) 299-7101. Attorney for Defendant -a rn ?.. -? M C)d -4 _tJ cy?y-1 f-yl 7a James N. Clymer, Esquire Attorney I.D. #: 27151 CLYMER, MUSSER, BROWN & CONRAD, P.C. 408 West Chestnut Street Lancaster, PA 17603 (717) 299-7101 Attorneys for Defendants 14NS MANAGEMENT, LLC t/a IN THE COURT OF COMMON PLEAS COUNTRY OVEN RESTAURANT f/k/a CUMBERLAND COUNTY SAHAR MATER ENTERPRISES PENNSYLVANIA CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. Docket No.: 11-5234 JAIRAM 7, INC., CIVIL ACTION - AT LAW Defendants JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT, NEW MATTER AND COUNTER-CLAIM AND NOW comes Defendant, Jairam 7, Inc. (hereinafter referred to as "Defendant"), by and through its counsel, CLYMER, MUSSER, BROWN & CONRAD, P.C., and files the within Answer to Plaintiffs Complaint and New Matter with Counter- Claim as follows: PARTIES Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 1 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 2. Admitted. JURISDICTIONAND VENUE 3. Admitted. 4. Admitted. Admitted. 6. Admitted. ARBITRATION 7. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 7 are denied and strict proof thereof is demanded at time of trial. BACKGROUND 8. Admitted in part and denied in part. It is admitted only that Country Oven Restaurant entered into a Lease Agreement with Beauty Seven. It is denied that a copy of said Lease Agreement was ever requested. On the contrary, it is averred that no such requests have been made. To the extent that it is deemed relevant and can be located, said Lease Agreement can be made available through discovery. 9. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 10. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 10 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 11. Admitted to the extent that said document is a writing that speaks for itself. 12. Admitted to the extent that said document is a writing that speaks for itself. 13. Although it is unclear as to what document Plaintiff is referring to, Defendant admits that the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit "A" is not signed by any party; however, it is denied that said Joint Venture Agreement is in any way binding on Defendant. By way of information and belief, it is further averred that the initial term of the Joint Venture Agreement is August 3, 2003 when the Addendum was executed. 14. Denied. It is denied that Defendant subdivided and sold the Howard Johnson Hotel. On the contrary, it is averred that Defendant did not subdivide and sell the Howard Johnson Hotel. On the contrary, Beauty Seven, the owner of the property, prepared and recorded a Declaration of Condominium and the Howard Johnson Hotel constitutes Unit 1 in that Condominium and is still owned by Beauty Seven. Additionally, it is denied that each hotel has a separate entrance, as well as separate parking lots. On the contrary, it is averred that there is a shared entrance and parking lots. COUNT I - BREACH OF CONTRACT 15. Defendant repleads the answers contained in paragraphs 1 through 14 of Defendant's Answer and the same are incorporated by reference herein as fully as though the same were herein set forth at length. 16. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff s Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 17. Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 17 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 18. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant has failed or has otherwise refused to make any renovations to the Banquet Hall. On the contrary, it is averred that Defendant has offered to make renovations to the Banquet Hall. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 18 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 19. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff s Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant has failed or has otherwise refused to take care of its responsibilities under the terms of the Agreement. On the contrary, it is averred that Defendant has taken care of its responsibilities under the terms of the Agreement. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 19 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 20. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit "B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff s Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant has failed or has otherwise refused to properly maintain and repair the roof on the Property. On the contrary, it is averred that Defendant has properly maintained and/or repaired the roof on the Property. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 20 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 21. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 21 are denied and strict proof thereof is demanded at time of trial. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 21 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 22. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 22 are denied and strict proof thereof is demanded at time of trial. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 22 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 23. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant has failed or has otherwise refused to properly maintain the sewer lines located outside of the banquet facility. On the contrary, it is averred that Defendant has properly maintained the sewer lines located outside of the banquet facility and that Plaintiff has caused and/or contributed to any alleged problems. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 23 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 24. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is denied that a plumbing contractor discussed any alleged problem with the sewer line with Defendant. On the contrary, it is averred that no one discussed any alleged problem with the sewer line with Defendant. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 24 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 25. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that Defendant had the responsibility to maintain and repair anything inside the Restaurant and Banquet Hall. It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. If Defendant is deemed to have such responsibility, it is specifically denied that Defendant failed or refused to maintain and repair the HVAC system or that the Restaurant and Banquet hall are not properly heated in the fall and winter months or properly air conditioned during the spring and summer months. On the contrary, it is averred that Defendant maintain and repair the HVAC system and that the temperature has been appropriate for the seasons. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 25 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 26. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff s Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is denied that there were any problems with the HVAC system or that Defendant had any obligation to pay for repairs inside the Restaurant and Banquet Hall; however, in a gesture of good faith, Defendant agreed and did pay one-half of the invoice that was provided to them. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 26 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 27. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit "B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that Defendant had the responsibility to maintain and repair anything inside the Restaurant and Banquet Hall. It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. If Defendant is deemed to have such responsibility, it is specifically denied that Defendant failed or refused to maintain and repair the HVAC system or that the Restaurant and Banquet hall are not properly heated in the fall and winter months or properly air conditioned during the spring and summer months. On the contrary, it is averred that Defendant maintain and repair the HVAC system and that the temperature has been appropriate for the seasons. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 27 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 28. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 29. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff s Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff s Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiffs entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant has failed or otherwise refused to maintain the parking areas. On the contrary, it is averred that Defendant has always maintained the parking areas. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 29 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 30. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 31. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 31 are denied and strict proof thereof is demanded at time of trial. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 31 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 32. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit `B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. It is specifically denied that Defendant is not treating hotel rooms which are located in the same building as the restaurant. On the contrary, it is averred that Defendant is appropriately maintaining all of the hotel rooms. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 32 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 33. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 33 are denied and strict proof thereof is demanded at time of trial. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 33 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 34. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 35. Denied. It is denied that Defendant unilaterally determined to close any part of the parking lot. On the contrary, it is averred that Defendant did not make any decisions regarding the parking lot, rather, Beauty Seven did. Additionally, it is denied that there is very little, if any, parking area for truckers. On the contrary, it is averred that there is adequate parking area for truckers. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 35 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 36. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff's entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. Furthermore, Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 36 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 37. Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 37 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. Furthermore, the document is a writing that speaks for itself. 38. Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 38 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 39. Admitted in part and denied in part. It is admitted only that Plaintiff recites the terms of the Joint Venture Agreement attached to Plaintiff's Complaint as Exhibit `B. By way of further answer, the terms of Exhibit "B (a written document) speak for themselves. It is further averred that Plaintiff has failed to attach the Addendum dated August 3, 2003, which amended, modified and supplemented the parties' agreement. A true and correct copy of the Addendum is attached hereto, incorporated herein and marked as Exhibit "A". It is denied that the Agreement attached to Plaintiff's Complaint as Exhibit "A" is a copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the parties. On the contrary, it is averred that Exhibit "A" is not signed by any of the parties or is in any way binding on Defendant. It is further averred that it is unclear from a review of Plaintiff s entire Complaint as to which Exhibit is being relied upon as the basis for any of their claims. 40. Denied. It is denied that Defendant subdivided and sold the property. On the contrary, it is averred that Defendant did not subdivide and sell the property; rather, Beauty Seven did. Additionally, it is denied that Defendant had any obligation to inform Plaintiff. On the contrary, it is averred that Defendant had no such obligation. 41. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 41 are denied and strict proof thereof is demanded at time of trial. 42. Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 42 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. 43. Admitted in part and denied in part. It is admitted only that said letter was sent on September 8, 2009 by Plaintiff and the writing speaks for itself. The remaining averments of paragraph 43 are denied and strict proof is demanded at time of trial. 44. Denied. It is specifically denied that any joint venture payments were made. On the contrary, it is averred that no joint venture payments were made. 45. Denied. It is specifically denied that Plaintiff ever notified Defendant that, commencing October 2010, Plaintiff would be paying the Joint Venture Distribution payments into an escrow account. On the contrary, it is averred that Plaintiff never notified Defendant that, commencing October 2010, Plaintiff would be paying the Joint Venture Distribution payments into an escrow account. Moreover, the remaining averments of paragraph 45 are denies as a conclusion of law. 46. Admitted to the extent that said document is a writing that speaks for itself. 47. Admitted to the extent that said documents is a writing that speaks for itself. 48. Admitted to the extent that said documents is a writing that speaks for itself. 49. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 49 are denied and strict proof thereof is demanded at time of trial. 50. Denied. It is specifically denied that, in February 2011, Plaintiff orally notified Defendant that Plaintiff would again resume making payments into an escrow account until such time that Defendant cured any alleged breach. On the contrary, it is averred that Plaintiff never communicated that they would make payments into an escrow account. The remaining averments of paragraph 50 are denied as a conclusion of law to which no response is deemed to be required and strict proof thereof is demanded at time of trial. 51. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 51 are denied and strict proof thereof is demanded at time of trial. 52. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 52 are denied and strict proof thereof is demanded at time of trial. Answering Defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 52 and, as such, its averments are denied and strict proof is demanded at the time of trial, if relevant. WHEREFORE, Defendant, Jairam 7, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismissing the Complaint and awarding its costs of suit, attorneys' fees and such other relief as the Court deems just and proper. COUNT III - FRAUDULENT MISREPRESENTATION 53. Defendant repleads the answers contained in paragraphs I through 52 of Defendant's Answer and the same are incorporated by reference herein as fully as though the same were herein set forth at length. 54. Admitted to the extent that the writing speaks for itself. Any inferences of wrongdoing by Defendant are denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 54 are denied and strict proof thereof is demanded at time of trial. 55. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 55 are denied and strict proof thereof is demanded at time of trial. 56. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 56 are denied and strict proof thereof is demanded at time of trial. 57. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 57 are denied and strict proof thereof is demanded at time of trial. 58. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 58 are denied and strict proof thereof is demanded at time of trial. 59. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 59 are denied and strict proof thereof is demanded at time of trial. 60. Admitted to the extent that the writing speaks for itself. Any inferences of wrongdoing by Defendant are denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 60 are denied and strict proof thereof is demanded at time of trial. 61. Admitted to the extent that the writing speaks for itself. Any inferences of wrongdoing by Defendant are denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 61 are denied and strict proof thereof is demanded at time of trial. 62. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 62 are denied and strict proof thereof is demanded at time of trial. 63. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 63 are denied and strict proof thereof is demanded at time of trial. 64. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 64 are denied and strict proof thereof is demanded at time of trial. 65. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 65 are denied and strict proof thereof is demanded at time of trial. 66. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 66 are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Defendant, Jairam 7, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismissing the Complaint and awarding its costs of suit, attorneys' fees and such other relief as the Court deems just and proper. COUNT IV - TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS 67. Defendant repleads the answers contained in paragraphs 1 through 66 of Defendant's Answer and the same are incorporated by reference herein as fully as though the same were herein set forth at length. 68. Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph 68. 69. Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph 69. 70. Denied. It is specifically denied that the HVAC system servicing the banquet hall was ever in a state of disrepair. On the contrary, it is averred that the banquet hall was never in any state of disrepair. It is also specifically denied that the banquet hall was not properly heated during the fall and winter months and was not properly cooled during the spring and summer months. On the contrary, it is averred that the banquet hall was properly heated during the fall and winter months and properly cooled during the spring and summer months. 71. Denied. It is specifically denied that the sewage line outside of the banquet facility was in a state of disrepair. On the contrary, it is averred that the sewage line outside of the banquet facility was never in any state of disrepair. Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph 71. 72. Denied. It is specifically denied that the roof of the banquet hall leaked. On the contrary, it is averred that the roof of the banquet hall did not leak. The remaining averments of paragraph 72 are denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 72 are denied and strict proof thereof is demanded at time of trial. 73. Denied. It is specifically denied that there were any repairs necessary to the banquet facility. On the contrary, it is averred that there were no repairs necessary to the banquet facility. It is specifically denied that Defendant failed or otherwise refused to act on Plaintiff's request. On the contrary, it is averred that there was no action to be taken by Defendant. The remaining averments of paragraph 73 are denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 73 are denied and strict proof thereof is demanded at time of trial. as a conclusion of law. 74. Denied. It is specifically denied that Plaintiff advised Defendant in 2008, September 2009 and/or December 2010 that if required repairs were not made to the banquet facility that Plaintiff would lose banquet contracts. On the contrary, it is averred that Plaintiff never advised Defendant of any such potential loss of contracts. 75. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 75 are denied and strict proof thereof is demanded at time of trial. 76. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 76 are denied and strict proof thereof is demanded at time of trial. 77. Denied as a legal conclusion to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 77 are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Defendant, Jairam 7, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismissing the Complaint and awarding its costs of suit, attorneys' fees and such other relief as the Court deems just and proper. NEW MATTER 78. Answering Defendant repleads the answers contained in paragraphs 1-77 of Defendant's Answer and the same are incorporated by reference herein as fully as though the same were herein set forth at length. 79. To the extent that the instant action may be barred and/or limited by the applicable statute of limitations or by laches, Defendant claims same. 80. The instant action fails to state a cause of action upon which relief may be granted. 81. Defendant violated no contractual duty. 82. Plaintiff s damages, if any, are limited by the terms of its contract with Defendant and/or the economic loss rule. 83. Plaintiff's damages, if any, were caused by their own actions or inactions, and in no way by the action or inaction of Defendant. 84. Plaintiff failed to mitigate its damages. 85. Plaintiff's claims are barred by the defense of unclean hands. 86. Plaintiff's claims are barred by the defense of waiver. 87. Inasmuch as Pennsylvania Rule of Civil Procedure 1031 provides that a party waives all defenses not presented by way of answer, Defendant, upon the advice of counsel, hereby asserts all affirmative defenses not otherwise enumerated herein as set forth in Pennsylvania Rules of Civil Procedure 1032. That set of affirmative defenses includes inter alia: estoppel, immunity, illegality, release, station of limitations, et al. Said affirmative defenses are subject to demonstration during the discovery process and proof at the time of trial. WHEREFORE, Defendant, Jairam, 7, Inc., demands judgment in its favor and against the Plaintiff and requests that the Complaint against it be dismissed with prejudice. COUNTER-CLAIM 88. Answering Defendant repleads the answers contained in paragraphs 1-87 of Defendant's Answer and New Matter and the same are incorporated by reference herein as fully as though the same were herein set forth at length. 89. Plaintiff was obligated to make Joint Venture Distribution payments to Defendant pursuant to the Joint Venture Agreement attached to Plaintiff s Complaint as Exhibit "B." 90. In reliance on Plaintiffs contractual obligation pursuant to the Joint Venture Agreement to make said Joint Venture Distribution payments, Defendant agreed to meet with Plaintiff to discuss the alleged problems. 91. Plaintiff failed to make said Joint Venture Distribution payments to Defendant in accord with the Joint Venture Agreement and is in arrears in the sum of Sixty-four Thousand and No/ 100 ($64,000.00) Dollars. 92. Plaintiff has failed and has otherwise refused to cure its breach of the Joint Venture Agreement. 93. As a direct and proximate result of Plaintiff's breach, Defendant has incurred damages including, but not limited to, Joint Venture Distribution payments. WHEREFORE, Defendant, Jairam, 7, Inc., demands judgment in its favor and against the Plaintiff in the sum of Sixty-four Thousand and No/100 ($64,000.00) Dollars together with attorneys' fees, interest and costs of suit, and such other relief as permitted by law. Respectfully submitted: CLYMER, MUSSER, BROWN & CONRAD, P.C. Date: 408 West Chestnut Street Lancaster, PA 17603 (717) 299-7101 Attorneys for Defendant VERIFICATION I, the undersigned, as the authorized agent for Defendant, Jairam 7, Inc., verify that the statements made in the attached Defendant's Answer to Plaintiff's Complaint, New Matter and Counter-Claim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Date: 1( CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing Defendant's Answer to Plaintiff's Complaint, New Matter and Counter-Claim upon the following person(s) and in the following manner pursuant to the Pennsylvania Rules of Civil Procedure. Via First Class Mail and Addressed as Follows: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 CLYMER, MUSSER, BROWN & CONRAD, P.C. By: ?? - James N. lym squire -' Attorney I. 1 408 West Chestnut Street Lancaster, PA 17603 (717) 299-7101 Attorneys for Defendants Date: 1111,121 l/ ADDENDUM TO JOINT VENTURE AGREEMENT BETWEEN COUNTRY OVEN, INC. AND JAIRAM 7, INC. . © This agreement is an Addendum to the Joint Venture Agreement entered into by and betw?Country Oven, W. and Jairam 7, Inc. under date of XP s(- / / , 20 3 and is intended to modify, supplement and amend said Joint Venture Agreement as follows: The name of the Joint Venture shall be PCO Joint Venture- 2. The Raskeller Room shall be included in the area under the control and management of Restauranteur with no change in the distribution of Joint Venture proceeds from what is otherwise provided in the Joint Venture Agreement- 3. Although it is the responsibility of Restauranteur to remodel and make improvements to the area under its supervision and control, Hotel will assist in maldrtg funds available for such improvements and renovations by loaning up to Seventy Five Thousand and 00/100 Dollars ($75,000.00) to Restaurameur under the following terms and conditions. A. Restanranteur will match and contribute from its own funds an amount equal to what is loaned by Hotel. 2. The capital contributed by Restauranteur and the money loaned by Hotel for renovations maprovement purposes shall be maintained in a separate fund and only used for improvement and renovation purposes for items that are intended as part of the real estate and not subject to removal by Restauranteur at the termination of this Agreement. W)01*77 A14 hoqv.,l e- 3. The funds from the improvements) ovations account shall be withdrawn only upon prior approval to pay fo specific renovations and improvements and subject to the approval of Hotel and Restauranteur. The improveme tsirenovations account shall be specifically for the Mariposa Banquet Hall, Raskeller Room, lobby area, lounge and kitchen and shall not be used for any items which are permitted to be removed by Restauranteur at the end of the term. 4. Restauranteur shall pay Hotel interest at the rate of seven and one half percent (7.5% ) per annum for funds advanced by Hotel for the improvement/renovation project. Interest only on the unpaid balance shall be paid through 1% 00?.,i_q be{?o 5. Afterwo, 2003, Restauranteur shall begin malting monthly payments in the amount of One Thousand Two Hundred Fifty and 00/100 Dollars ($1,250.00) principal plus accrued interest on the unpaid balance at the rate of seven and one half perTpt s7. ?fO?) per annum. These payments shall begin on the first day of Sep? 2003, and shall continue on the first day of each month for sixty months (60) or until the principal balance and all accrued interest is paid in full. (? ?.F,/ /h ?? rE? Re s ?a 4 r? ? ? ?ah ?? ?rh e ? f r,.ded -V)l Ica' 4e- % ` 6x. A 4. Hotel and Restauranteur hereby agree to share in the cost of renovation, unprovements to the lobby area. Hotel will pay one-half of the cost of approved renovation/improvements to the lobby area 5. Restauranteur hereby guarantees the minimum joint venture base distribution to Hotel as set forth in the Joint Venture Agreement for a period of three years to run: from August 1, 2003. This guarantee shall apply in any situation in which the Restauranteur fails to continue with the operation under the Joint Venture Agreement. 6. As an inducement for Restauranteur to continue as a Joint Venturer for an extended period of time, Hotel will give a monthly credit to Restauranteur in the amount of One Thousand Five Hundred and 00/100 Dollars ($1,500.00) each month until such credit equals the combined amount expended by Hotel and Restauranteur for renovationrunprovements to the real estate pursuant to Paragraph 3 hereinabove, but not to exceed $150,000.00 in total credit. If at any time or for any reason (other than a breach of the Agreement by Hotel ) before the expiration of 100 months of operation under the Joint Venture Agreement, Restauranteur does not continue as a Joint Venturer, Restauranteur will thereby relinquish and waive any rights to the credit provided under this paragraph. 7. Hotel hereby agrees to replace two (2) air conditioning units in the Mariposa ]Banquet Hail at the sole expense of Hotel. Any repairs needed on the air conditioning units up to $500.00 shall be paid by both parties in equal shares. If any repairs over $500.00 are needed, the parties shall negotiate a mutual agreement for payment allocations. 8. Maintenance and cleaning of the grease trap shall be the sole responsibility of Restauranteur and Restauranteur shall have the grease trap cleaned at least monthly. 9. Restauranteur shall provide breakfast service between 6:00 A.M. and 10:00 A.M. or such additional hours as it shall desire. 10. Restauranteur shah make necessary changes in the sports bar area. Specifically, Restauranteur shall install windows and doors to suit its business purposes. These' funds may be used from the joint renovations/improvements fund of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). N 0 V C to b e `//" Mariposa l l. After August 1, 2003, any improvements in the restaurant, lounge, Banquet Hall or Raskeller Room shall be the sole responsibility of Restaurant= at its sole costs, including, but not limited, to replacement of carpet, wallpaper, accessories and decorations. 12. Wherever the term `Best Western" is used in the Joint Venture Agreement, it shall be replaced with the term "Jairam 7, Inc_"' as the Hotel is no longer operating as a Best Western facility. 2 U11 w? 13 The Joint Venture will apply for a hotel liquor license before 200:3. The entire costs for acquisition and maintenance of the liquor license shall be the sole responsibility of Restauranteur. 14, Restauranteur shall have completed the renovations and improvements in the lounge area and restaurant by the second week of jyl? 2003 15, Restauranteur will complete the renovations and Improvements in the Mariposa Banquet Hall and Raskeller Room before August 1, 2003. 16. Hotel shall secure for Restauranteur a right of first refusal to purchase the Hotel property in the event the owner receives a bonafide offer to purchase the Hotel property under the terms and conditions acceptable to owner. In such event Restauranteur will be presented the tems and conditions of such offer in writing whereupon Restauranteur shall had l & days after receipt thereof within which to present an offer on identical or better terms to the owner which the owner shall be obliged to accept- Following the lapse of the ten day period, if Restauranteur has not submitted an offer on identical or better terms, this right of first refusal shall have expired and Restauranteur shall have no further rights thereunder. 17. The obligation for repayment of the $75,000.00 loan under Paragraph 3 hereinabove shall be secured by a judgment Note on which both the Restauranteur and the principals of Country Oven, Inc. shall be Obligors. 18_ The date of signing of this Addendum shall be deemed the date of complete signing of the Joint Venture Agreement and all dates in the principal agreement and this Addendum using as its reference point the signing of the Agreement shall be construed as the date on which this Addendum is signed by both parties. 19. This Addendum shall supplement and modify the primary agreement and the terms of this Addendum shall take precedence over any conflict with terms in the principal agreement. IN WITNESS WHEREOF, the parties have hereunto set their hand and seal this J / day of fax- 203. N, u t Hotel: ATTEST: Secretary ATTEST: Secretary JAIRAM 79 INC. By: •t _ President Restauranteur: COUNTRY O B President 3 SERRATELIU,, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Email: PMacdonald-Matthes@,ssbc-law.com Attorneys for Plaintiff C1 iMELPROTHONOTARY 2011 DEC 27 PM 2: 21 CUMBERLAND COUNTY PENNSYLVANIA HNS MANAGEMENT, LLC t/a IN TH COURT OF COMMON PLEAS COUNTRY OVEN RESTAURANT CUM ERLAND COUNTY, PENNSYLVANIA f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, DOCKET NO.: 2011-5234 Plaintiff V. . CIVIL ACTION - AT LAW JAIRAM 7, INC., JURY TRIAL DEMANDED Defendant. TO THE PROTHONOTARY: Please remove Plaintiff's Preliminary Objections'to Defendant's New Matter and Counterclaim from the January 6, 2012 argument list. Date: December 22, 2011 Respectfully submitted, Paige Macdonald-Matthes, Esquire Att r ID No. 66266 SE TELLI, SCHIFFMAN & B OWN, PC 208 Linglestown Road, Suite 201 H isburg, PA 17110 (71 ) 540-9170 Atto ney for Plaintiff le . CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that a true and correct copy of Plaintiff's Praecipe to Remove Preliminary Objections From January 6, 2012 Argument List has been served upon all parties of interest by placing the same in the United States Mail, first-class, postage pre-paid, at Harrisburg, Pennsylvania on this 2? d day of December, 2011, and addressed as follows: JAMES N. CLYMER, ESQUIRE CLYMER, MUSSER, BROWN CONRAD, P.C. 408 WEST CHESTNUT STREET LANCASTER, PA 1 603 DEFENDANT'S COUNSEL Matthes, Esquire 2 FILED-CFFiCF. Cr THE PROTHONOTARY SERRATELLI, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Facsimile Email: PMacdonald-Matthes@ssbc-law.com Attorneys for Plaintiff, HNS Management, LLC HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. JAIRAM 7, INC., Defendant 2012 JAN 10 PM 12= 4 7 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.4 31 : CIVIL ACTION- AT LAW : JURY TRIAL DEMANDED NOTICE TO PLEAD To: JAIRAM 7, INC. c/o James N. Clymer, Esquire Clymer Musser Brown & Conrad, P.C. 408 West Chestnut Street Lancaster, PA 17603 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections to Defendant's Amended New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, & BROWN, P. C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Date: January 9, 2012 (717) 540-9170 SERRATELLI, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Facsimile Email: PMaddonald-Matthesna,ssbc-law.com Attorneys for Plaintiff, HNS Management, LLC HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/Wa SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 11-2534 : CIVIL ACTION- AT LAW : JURY TRIAL DEMANDED JAIRAM 7, INC., Defendant PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S AMENDED NEW MATTER AND COUNTERCLAIM AND NOW, comes Plaintiff, HNS Management, LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a/ Mater Restaurant Management and Country Oven Restaurant ("Plaintiff'), by and through its counsel, Serratelli, Schiffman & Brown, P.C., and files its Preliminary Objections to the New Matter and Counterclaim filed on behalf of Defendant, Jairam 7, Inc., and in support thereof avers as follows: FIRST PRELIMINARY OBJECTION TO AMENDED NEW MATTER- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R.Civ. P. 1028(a)(2) In their New Matter, Defendant asserts the following "affirmative defenses": (79) To the extent that the instant action may be barred and/or limited by the applicable statute of limitations or by laches, Defendant claims the same. (80) The instant action fails to state a claim upon which relief can be granted. 2 (82) Plaintiff's damages, if any, are limited by the terms of its contract with Defendant and/or the economic loss rule (83) Plaintiff's damages, if any, were caused by their [sic] own action or inactions, and in no way by the action of Defendant. (84) Plaintiff failed to mitigate its damages. (85) Plaintiff s claims are barred by the defense of unclean hands. (86) Plaintiff's claims are barred by the defense of waiver. (87) Inasmuch as Pennsylvania Rule of Civil Procedure 1031 provides that a party waives all defenses not presented by way of answer, Defendant, upon the advice of counsel, hereby asserts all affirmative defenses not otherwise enumerated herein as set forth in Pennsylvania Rule of Civil Procedure 1032. That set of affirmative defenses includes inter alia: estoppel, immunity, illegality, release, statute of limitations, et al. Said affirmative defenses are subject to demonstration during the discovery process and proof at the time of trial. 2. Pennsylvania Rule of Civil Procedure 1019(a) requires that "the material facts on which a cause of action or defense is based shall be stated in concise and summary form." 3. Pennsylvania is a fact pleading state. Pleadings in a fact pleading jurisdiction serve the purpose of putting an opponent on notice of what he will be called upon to meet at trial and define the issues for trial. 4. With respect to the pleading of affirmative defenses, all such defenses must be pleaded in a responsive pleading under the heading "new matter." Pa. R.Civ.P. 1030. 5. The material facts upon which a defense is based must be stated in a concise and summary form. Pa. R.Civ.P. 1019(a). 6. The term "material facts" has been defined as "those facts essential to support the claim raised in the matter." A pleading therefore must do more than simply give the adverse party fair notice of which his claim or defense is and the grounds upon which it rests. See e.g., 3 Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A/2d 600 (1983); Lee v. Denner, 75 D&C 4`h 181, 190-192 (C.C.P. Monroe 2005). 7. The affirmative defenses alleged by Defendant in paragraph nos. 79-80 and 82- 87 of its pleading under the heading "New Matter" are general, boilerplate averments without any specific factual allegations. 8. A review of paragraph nos. 79-80 and 82-87 of Defendant's New Matter reveals that those paragraphs do not conform to the requirements set forth in Pa R.Civ.P. 1019(a). Accordingly, paragraph 79 through 80 and 82-87 of Defendant's New Matter fail to conform to rule of court and should be dismissed with prejudice, especially in light of the fact that Defendant was already placed on notice of its pleading deficiencies at the time of Plaintiff's filing of its Preliminary Objections to Defendant's originally filed New Matter and Defendant has continued to fail to correct said pleading deficiencies. WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court sustain its First Preliminary Objection to Paragraph Nos. 79-80 and 82-87 of Defendant's Amended New Matter, dismiss Paragraph Nos.79-80 and 82-87 of Defendant's Amended New Matter with prejudice, and further award Plaintiff all such other relief as is proper and just. SECOND PRELIMINARY OBJECTION TO AMENDED NEW MATTER- INSUFFICIENCY SPECIFICITY OF PLEADING Pa. R.Civ. P. 1028(x)(3) 9. The averments set forth in paragraphs 1 through 8 are incorporated by reference as if more fully set forth at length herein. 4 10. As previously stated herein, in their Amended New Matter, Defendant asserts the following "affirmative defenses": (79) To the extent that the instant action may be barred and/or limited by the applicable statute of limitations or by laches, Defendant claims the same. (80) The instant action fails to state a claim upon which relief can be granted. (82) Plaintiffs damages, if any, are limited by the terms of its contract with Defendant and/or the economic loss rule (83) Plaintiff's damages, if any, were caused by their [sic] own action or inactions, and in no way by the action of Defendant. (84) Plaintiff failed to mitigate its damages. (85) Plaintiff's claims are barred by the defense of unclean hands. (86) Plaintiff's claims are barred by the defense of waiver. (87) Inasmuch as Pennsylvania Rule of Civil Procedure 1031 provides that a party waives all defenses not presented by way of answer, Defendant, upon the advice of counsel, hereby asserts all affirmative defenses not otherwise enumerated herein as set forth in Pennsylvania Rule of Civil Procedure 1032. That set of affirmative defenses includes inter alia: estoppel, immunity, illegality, release, statute of limitations, et al. Said affirmative defenses are subject to demonstration during the discovery process and proof at the time of trial. 11. Pennsylvania is a fact pleading state. Pleadings in a fact pleading jurisdiction serve the purpose of putting an opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. 12. The material fact on which a defense is based must be stated in a concise and summary form. Pa. R.Civ.P. 1019(a). 13. The term "material facts" has been defined as "those facts essential to support the claim raised in the matter." A pleading therefore must do more than simply give the adverse party fair notice of which his claim or defense is and the grounds upon which it rests. See e.g., 5 Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A/2d 600 (1983); Lee v. Denner, 75 D&C 4th 181, 190-192 (C.C.P. Monroe 2005). 14. The affirmative defenses alleged by Defendant in paragraph nos. 79-80 and 82- 87 of its pleading under the heading "New Matter" are general, boilerplate averments without any specific factual allegations. 15. A review of paragraph nos. 79-80 and 82-87 of Defendant's New Matter reveals that those paragraphs do not conform to the requirements set forth in Pa R.Civ.P. 1019(a). 16. Due to the lack of specificity of the averments set forth in paragraph nos. 79-80 and 82-87 of Defendant's New Matter, Plaintiff is unable to prepare an adequate answer to the same. Specifically, Plaintiff is unable to confirm or deny the allegations in these paragraphs of Defendant's New Matter without the benefit of further facts. 17. Plaintiff would be prejudiced if she was required to respond to the purported affirmative defenses in paragraph nos. 79-80 and 82-87 of Defendant's New Matter in the absence of more specific factual allegations which would support Defendant's purported affirmative defenses. WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court sustain its Second Preliminary Objection to Paragraph Nos. 79-80 and 82-87 of Defendant's Amended New Matter, dismiss Paragraph Nos. 79-80 and 82-87 of Defendant's Amended New Matter with prejudice, and further award Plaintiff all such other relief as is proper and just. 6 THIRD PRELIMINARY OBJECTION RE: DEFENDANT'S AMENDED NEW MATTER AND COUNTERCLAIM- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT Pa. R.Civ. P. 1028(a)(1) 18. The averments set forth in paragraphs 1 through 17 are incorporated by reference as if more fully set forth at length herein. 19. Pa. R.Civ.P. 206.3 requires that a "petition or answer containing a fact which does not appear of record shall be verified." 20. Defendant's Amended Answer, New Matter and Verification was required to be properly verified in accordance with Pa. R.Civ.P. 206.3. 21. A review of the Verification attached to Defendant's Amended New Matter and Counterclaim reveals that it is a "stale" document. Specifically, it is the Verification that was used for the Defendant's originally filed Answer to Plaintiff's Complaint, New Matter and Counterclaim," as evidenced by the fact that it plainly states that it pertains to the "statements made in the attached Defendant's Answer to Plaintiff s Complaint, New Matter and Counter- Claim are true and correct." 22. Defendant's Amended Answer, New Matter and Counterclaim fails to conform to law or rule of court and should be dismissed accordingly. WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court sustain its Third Preliminary Objection to Defendant's Amended New Matter and Counterclaim with prejudice, and further award Plaintiff all such other relief as is proper and just. Alternatively, Plaintiff respectfully requests that this Honorable Court sustain its Third Preliminary Objection to Defendant's Amended New Matter and Counterclaim and direct Defendant to properly file a second amended pleading that complies with the Rules of Civil Procedure. 7 FOURTH PRELIMINARY OBJECTION RE: DEFENDANT'S AMENDED COUNTERCLAIM- INSUFFICIENCY SPECIFICITY OF PLEADING Pa. R.Civ. P. 1028(a)(3) 23. The averments set forth in paragraphs 1 through 22 are incorporated by reference as if more fully set forth at length herein. 24. In paragraph 90 of Defendant's Counterclaim, Defendant makes the bald assertion that "In reliance on Plaintiff's contractual obligation pursuant to the Joint Venture Agreement to make said Joint Venture Distribution payment, Defendant agreed to meet with Plaintiff to discuss the alleged problems." 25. As is evidenced by the averment set forth in paragraph 90 of Defendant's Counterclaim, Defendant fails to identify what the "alleged problems" were that Defendant refers to in paragraph 90 of its Counterclaim. 26. In paragraph 93 of its Counterclaim, Defendant also makes the bald assertion that "As a direct and proximate result of Plaintiff's breach, Defendant has incurred damages including but not limited to, Joint Venture Distribution payments." 27. As is evidenced by the averment set forth n paragraph 93 of Defendant's Counterclaim, Defendant fails to identify its specific damages, and further fails to identify what Joint Venture Payments it has allegedly not received from Plaintiff. Indeed, Defendant concedes that it does not have information to support this claim (and is thus suggesting that Plaintiff "guess" as to the information that allegedly supports this claim by virtue of the averment "Some of the Joint Venture Distribution payments not received [allegedly] were documented in a letter from Defendant's counsel to Sahar Mater Enterprises dated January 17, 2011." (Emphasis added). 28. Without the benefit of a more specific pleading, Plaintiff is unable to respond to the claim raised in paragraph 90 of Defendant's Counterclaim and would further be prejudiced if it were required to do so in the absence of more specific factual allegations which would support the averments set forth in paragraph 90 of Defendant's Counterclaim. 29. Without the benefit of a more specific pleading, Plaintiff is unable to respond to the claim raised in paragraph 93 of Defendant's Counterclaim and would further be prejudiced if it were required to do so in the absence of more specific factual allegations which would support the averments set forth in paragraph 93 of Defendant's Counterclaim. WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court sustain its Fourth Preliminary Objection Re: Defendant's Amended Counterclaim, specifically paragraphs 90 and 93 of the same with prejudice, and further award Plaintiff all such other relief as is proper and just. Alternatively, Plaintiff requests that this Honorable Court sustain its Fourth Preliminary Objection Re: Defendant's Counterclaim and direct Defendant to properly file a Second Amended Pleading that complies with the Pennsylvania Rules of Civil Procedure. Respectfully submitted, Date: January 9, 2012cv Paige Macdonald-Matthes, Esquire Attorney I.D. #66266 SERRATELLI, SCHIFFMAN & BROWN, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Facsimile: (717) 540-5481 Attorneys for Plaintiff 9 VERIF1CA'10-I 1, Sahar Mater, Member of lINS Manal cinr"Mt, i.LC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC Va Matcr Restaurant Management and Country Oven Restaurant, verifv that the statements imut? U: t ?e. foregoing Preliminary Objections to Defendant's Amended New Matter and Conrter-i%,tim are true and correct. I understand that false statements herein are made subject to rite pl:nna:*ics of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. LLC 't"/A COUNTRY OVEN .\'T F/K/A SAMAR MATER ENTERPRISES :.?.C. 'I/A MATER RCSTAURANT AND COUNTRY OVEN RESTAURANT Date: g'o ( Z ,r Mater, Member CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, hereby certify that on this 9 h day of January, 2012, I served a true and correct copy of Plaintiffs Preliminary Objections to Defendant's Amended New Matter and Counterclaim via U.S. First Class Mail, Postage Paid on the following: JAMES N. CLYMER, ESQUIRE CLYMER, MUSSER, BROWN & CONRAD, P.C. 408 WEST CHESTNUT STREET LANCASTER, PA 17603 Paige Ma donald-Matthes, Esquire 11 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3`d Floor Peter M. Good, Esquire 4431 North Front Street pgood@sasllp.com Harrisburg, PA 17110 Jessica E. Mercy, Esquire (717) 234-2401 jmercy@sasllp.com Attorneys for Defendant HNS MANAGEMENT, LLC t/a IN THE COURT OF COMMON PLEAS COUNTRY OVEN RESTAURANT f/k/a CUMBERLAND COUNTY, PENNSYLVANIA SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. JAIRAM 7, INC. Defendant DOCKET NO. 11-5234 CIVIL ACTION - AT LAW JURY TRIAL DEMANDED = -71 ? F PRAECIPE TO WITHDRAW APPEARANCE Please withdraw my appearance on behalf of the Defendant, Jairam 7, Inc. CLYMER, MUSSER, BROWN & CONRAD, P.C. Date: 312_311-2- By: James u'ID# 27151 408 W s nut Street Lancaster, PA 17603 (717) 291-7101 PRAECIPE TO ENTER APPEARANCE Please enter our appearance on behalf of the Defendant, Jairam 7, Inc. SMIGEI/W RS N & SACKS Date: By: /? I Peter . Good, squire ID #64316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 . J CERTIFICATE OF SERVICE I hereby certify that on this ? day of, 2012 a true and correct copy of the foregoing document was served upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 SMIGEL, ANDERSON & SACKS, LLP By: Peter M.(Good, Esquire ID4 64316 Jessica E. Mercy, Esquire ID# 206405 River Chase Office Center, 3`d Flr. 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant 2 SERRATELLI, SCHIFFMAN & BROWN, P. C. r-n?' r1 Paige Macdonald-Matthes, Esquire M e , Supreme Court ID No. 66266 c rr 2080 Linglestown Road -a - Harrisburg, PA 17110 `-? (717) 540-9170 (717) 540-5481 Email: PMacdonald-Matthes&sbc-law. com Attorneys for Plaintiff HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT, Plaintiff V. JAIRAM 7, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO.: 2011-5234 : CIVIL ACTION - AT LAW : JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE & END WITH PREJUDICE TO THE PROTHONOTARY: Please settle, discontinue, and end, with prejudice the above captioned matter. Respectfully submitted, Paige Macdonald-Matthes Attorney ID No. 66266 Serratelli, Schiffman & Brown, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorney for Plaintiff Date: May 14, 2012 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that a true and correct copy of Praecipe to Settle, Discontinue and End With Prejudice has been served upon all parties of interest by placing the same in the United States Mail, first-class, postage pre-paid, at Harrisburg, Pennsylvania on this 14 th day of May, 2012, and addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks 4431 North Front Street Harrisburg, PA 17110 Counsel for Defendant --kI4 Ukt+." Paige Macdonald-Matthes, Esquire 2