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HomeMy WebLinkAbout12-2251PARTIES 1. Plaintiffs, Strato Della Ragione and Rosalba Della Ragione, currently own and operate Miseno's Pizza located at 1225 Ritner Highway, Carlisle, Cumberland County, PA 17013. 2. Defendant Vito lannuzzi is an individual residing at 3 Rockwell Court, Carlisle, Cumberland County, PA 17050. 3. Plaintiffs and Defendant executed the contract in Cumberland County, Pennsylvania for the sale of Miseno's Pizza also located in Cumberland County, Pennsylvania. JURISDICTION AND VENUE 4. Jurisdiction and venue are appropriate in this Court because the incident at issue out of which the Plaintiffs claims arise occurred in Cumberland County, Pennsylvania. FACTS 5. On or about April 1, 2005, the Plaintiffs purchased Miseno's Pizza for $270,000 plus interest from the Defendant. 6. The Plaintiffs paid the Defendant $50,000 in cash'. The Plaintiffs were then to pay the Defendant $3,000 a month until the contract stated purchase price plus interest was paid to the Defendant who would hold the note and act as a bank for the Plaintiffs. 7. A contract was executed on April 19, 2005, which contained a non-competition clause and no residential delivery of pizza clause. See Exhibit "A " consisting of the contract for sale of the restaurant with the non-competition clause and the no residential delivery clause. This payment was not part of the writing executed by the parties. Page 4 of 12 8. The non-competition clause states that in exchange for Buyer's agreements and payments set forth and in full consideration thereof, Seller agrees not to open or operate as principal or equity owner any restaurant within a three (3) mile radius of the Premises until the earlier of Buyer's payment of all amounts due to Seller under this Agreement or termination of this Agreement for any reason notwithstanding the restaurant situated at 598 West High Street, Carlisle, PA 17013 known as Miseno Pizza II Ristroante ("Miseno Pizza II"). 9. At the time the contract was executed Defendant's Restaurant at 598 West High Street, Carlisle, PA was operating as a Pub and named Miseno's Risto Pub. 10. Within two weeks after the execution of the contract, the Defendant began copying the menu of the Plaintiffs and selling pizzas at a deeply discounted price to that of the Plaintiffs. 11. After six (6) months the Defendant began renovating his restaurant to more closely resemble the pizza shop of the Plaintiffs. 12. On March 8, 2007, the Plaintiffs sent the Defendant a letter demanding that he stop violating the contract. See Exhibit "B" consisting of the demand letter. 13. However, the Defendant did not heed the letter and the Plaintiffs did not have the resources at the time to enforce their legal rights. Additionally, the father of the Plaintiffs asked that they not sue the Defendant, a childhood neighbor of the father from the same village in Italy2 z Parole evidence of this matter and many others is required to understand the total contract of the parties, which was not limited to the writing. Page 5 of 12 14. Eventually the Defendant began expanding his business and, thereby, effectively taking all the business of the Plaintiffs. 15. The Defendant had begun violating the no residential delivery clause in the contract regarding the home delivery of pizza, thereby also further reducing the business of the Plaintiffs within approximately six (6) months of the execution of the contract. See Exhibit "A „ 16. After the expansion of the Defendant's business and copying the decor and menu of the Plaintiffs in violation of the non-competition clause3 as well as the violation of the no residential delivery clause in the contract, the Plaintiffs stopped making money on their pizza shop and could no longer compete with the Defendant or pay to the Defendant their monthly rent. 17. The Plaintiffs had also asked the Defendant multiple times verbally to stop competing with them in violation of the contract. 18. To the extent the non-competition clause suggests a similar pizza shop could be opened, the parties understood and parole evidence will show that Miseno II was not a pizza parlor, but instead a bar, pub, or restaurant that also served pizza as part of a wider Italian menu in a sit-down atmosphere. s While the written contract contains reference to a carved out exception to the noncompetition clause, it contemplated that the Miseno's II would not become or act as a pizza parlor. Page 6 of 12 19. By way of example, parole evidence needs to be taken because there was a fifty thousand dollar ($50,000.00) cash payment not reflected in the writing, but part of the overall contract and understanding of the parties4. 20. It should also be noted that Italian and not English is the first language of the Plaintiffs, and that the Plaintiffs relied upon the mutual heritage and ethnicity of Defendant in forming the overall contract, including the written portions and the oral portions, and including the monies paid not reflected in the writing, and therefore parole evidence is needed. 21. On or about February 15, 2012, the Plaintiffs and Defendant agreed that Miseno's Pizza at 1225 Ritner Highway in Carlisle could be sold back to the Defendant as it was no longer profitable due to the blatant violation of the non-competition clause and the no residential delivery clause in the contract. 22. However, on February 29, 2012, the Defendant filed a Notice Under Rule 2973.2 of Judgment and Execution and a Notice Under Rule 2958.3 of Judgment and Execution Thereon as well as an Ejectment Action. On March 1, 2012, Defendant also filed a Complaint in Confession of Judgment Under Rule 2951. All at docket 2012-1369. 23. Upon information and belief Defendant never intended to repurchase the subject property, and actively misled Plaintiffs to prevent them from asserting their rights under the contact in a timely fashion prior to the filing of the Confession of Judgment. 4 Again, the true understanding of the parties was communicated before and at the written closing, much in Italian, between the parties. It has been learned that Defendant's closing attorney provided legal advice and a contract and terms overview to Plaintiffs, aided by the "Italian translation" of Defendant. Page 7 of 12 24. The costs and attorney's fees clause of the contract is further unconscionable in that it requires the Plaintiffs to pay Defendant's attorney fees for Plaintiffs' default, which was caused by Defendant's breach of the contract. COUNTI BREACH OF CONTRACT 25. The averments set forth in the preceding paragraphs are incorporated herein by reference as if fully set forth herein. 26. On or about April 1, 2005, as stated, Plaintiffs entered into an Agreement with Defendant in which the Defendant would sell Miseno's Pizza to the Plaintiffs. 27. The Defendant breach various provisions of the contract as set forth above thereby effectively bankrupting the business of the Plaintiffs. 28. Plaintiffs therefore were not able to pay their obligations in full. 29. Defendant has breached the Agreement by violating the no residential delivery and non-competition clauses of the contract. 30. Defendant knowingly began competing with the business of the Plaintiffs virtually as soon as he sold the business to them, thereby, effectively confusing customers and looting their business as both businesses go by the same moniker. 31. As a direct and proximate result of Defendant's breach of the Agreement, the Plaintiffs have been damaged in an amount in excess of $270,000.00 plus interest at the statutory rate from the date of the breach. Page 8 of 12 WHEREFORE, the Plaintiffs demand judgment in their favor against Defendant in an amount in excess of $270,000.00, together with attorney's fees, interest and such further relief as the Court deems just and proper. COUNT 11 INJUNCTION IN EQUITY 32. Defendant knowingly began competing with the business of the Plaintiffs virtually as soon as he sold the business to them, and most specifically violated the clause prohibiting the residential delivery of pizza. 33. Many of the original customers of Miseno's were Dickinson College students, who trusted the product name, as well as businesses and residents of Carlisle. 34. The parties contemplated that neither Miseno's nor Miseno's II would not poach nor compete with each other by associating the name and food reputation with home, business, nor dorm room delivery5. 35. This ongoing breach continues to bleed business and cash from Plaintiff. 36. Plaintiffs have a right to enforce the contract and are still in business. 37. Defendant should not profit from his willful violation of the contract. 38. As a direct and proximate result of Defendant's breach of the Agreement, the Plaintiffs have been damaged in an amount in excess of $270,000.00 plus interest at the statutory rate from the date of the breach. 39. The contract term is clear and Defendant has requested a preliminary injunction in a separate filing simultaneous hereto. 5 Further they clearly did this as this would be the only area of possible overlap, if Miseno's II had not altered it's format from a pub with Italian food, to a pizza parlor format similar to Miseno's. Page 9 of 12 WHEREFORE, the Plaintiffs demand judgment in their favor against Defendant in the form of an injunction requiring the cessation of all pizza delivery services by Defendant trading as Miseno's II and such further relief as the Court deems just and proper. COUNT III INJUNCTION IN EQUITY/ STAY 40. A writ of execution has been lodged at docket 2012-1369. 41. This is the result of a confession of judgment contained in the contract Defendant breached. 42. Irreparable harm will occur to Plaintiffs in this action (Defendants in that docket) should the Sheriff levy and take the property or inventory. 43. The circumstances (the alleged default) creating the basis of the filing of the confession of judgment was actually perpetrated and created by the bad acts of Defendant in violation of the contract and non-compete clauses, including the pizza delivery clause. 44. Plaintiffs need to maintain status quo so they can continuing working and maintaining the business asset(s) they purchased. 45. Because Defendant filed that confession where he created the conditions antecedent, it would be unfair to allow him to execute that judgment and force Plaintiffs to fold. 46. This Court needs to sort out the true contract of the parties, and assigned damages and arrearages to the appropriate party, but maintaining the status quo will prevent an injustice from occurring while these surcharges and faults are assigned. 47. The ongoing breach continues to rob business and cash from Plaintiff. Page 10 of 12 48. Plaintiffs have a right to enforce the contract and are still in business as of this filing. 49. Defendant should not profit from his willful violation of the contracts. 50. The contract term is clear and Defendant has requested a preliminary injunction in a separate filing simultaneous hereto. WHEREFORE, the Plaintiffs demand judgment in their favor against Defendant in the form of a stay prohibiting the Sheriff and Defendant from executing on the confession of judgment filed at Cumberland County Docket # 2012-1369, until resolution of this lawsuit. Respectfully Submitted, KOPE & ASSOCIATES, LLC LA- Date: Hilary Vesel ,, - sq. 6 Given the $50,000.00 unrecorded payment, it is clear that there was more to this agreement then was reduced to the writing, and the Italian language oral agreements prior to and at closing are as much part of this contract as that payment. Page 11 of 12 VERIFICATION I, Strato Della Ragione and Rosalba Della Ragione, the Plaintiffs in this matter, have read the foregoing Complaint. I verify that my averments in this Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Dated: 0 -17 Dated: 161Z? Page 12 of 12 A/Z Rosalba Della Ragione INSTALL,'VIENT - ASSET SALE AGREEMENT THIS AGREEMENT is entered into this day of April, 2005, by and between Vito Iannuzzi t/d/b/a Nliseno's Pizza ('Seller") and Strato Marco Delle Ragione and Rosalba Delle Ragione (collectively "Buyer") BACKGROUND A. Seller is engaged in a pizza restaurant business known as IMiseno's Pizza (the "Business") located at 1225 Ritner Highway, Carlisle, Pennsylvania 17013, being space 1 consisting of approximately 1500 square feet as more particularly set forth and described on Exhibit "A" attached hereto and made part hereof by reference (the "Premises") B. Seller leases the Premises from HPT Carlisle, L.P. ("Landlord") under that certain lease dated March, 1994, a copy of which is attached hereto as Exhibit "B" and made part hereof (the "Initial Lease"). C. The Initial Lease has been extended and modified as set forth in the letter agreements dated July 18, 2000 ("2000 Amendment"), December 6, 2001 ("2001 Amendment") and July 23, 2003 ("2003 Amendment"). Copies of the 2000 Amendment, 2001 Amendment and 2003 Amendment referred to herein collectively as the "Amendments" aie attached hereto as Exhibits "C", "D" and "E" respectively and made part hereof. The Initial Lease as amended by the Amendments is referred to herein collectively as the "Lease". D. Seller desires to sell and Buyer desires to purchase certain of the assets of or pertaining to the Business upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the above Background which is incorporated herein by reference as if set forth in full and the mutual Covenants and agreements contained herein, the parties, intending to be legally bound, agree as follows: 1. ACQUIRED ASSETS. In exchange for the consideration set forth below, subject to and upon the terms and conditions contained herein, Seller shall, upon payment of the Purchase Price identified in paragraph 4 below, sell, assign, transfer and convey to Buyer by bill EXHIBIT A of sale, endorsement, assignment or other appropriate instrument, free and clear of all liens, claims or encumbrances, except those specifically agreed to be assumed by Buyer herein, and Buyer shall purchase and accept all the equipment set forth on Exhibit "F" attached hereto and made part hereof (the " Equipment"), together with the following items found on the Premises as of April 19, 2005: all inventory - food, inventory - supplies (collectively the "Inventory") and leasehold improvements on the Premises as of April 19, 2005 (the "Leasehold Improvements") and good will of the business, including, without limitation, the right to use the name of the Business being "Miseno's Pizza" under the terms and conditions set forth in this Agreement and all recipes (the "Recipes") for the preparation of the food items on the menu for the Business as of April 19, 2005, a copy of which is attached hereto as Exhibit "G" (collectively referred to herein as the "Purchased Assets"). It is understood and agreed between the parties that all of the Purchased Assets and any and all duties and obligations to be undertaken by Buyer as part of the transactions contemplated by the parties hereto relate primarily to Miseno's Pizza located on the Premises which Seller currently operates. Buyer acknowledges and agrees that Seller is the principal share holder of Miseno Pizza, Inc., which currently owns and operates a restaurant situate at 598 West High Street, Carlisle, PA 17013 known as Miseno Pizza IT Ristorante ("Miseno Pizza II") which is not included in the sale under this agreement and, anything to the contrary set forth in this Agreement not withstanding, Seller shall continue to operate said restaurant under the name ` Miseno Pizza IT Ristorante" or some other name as Seller may determine from time to time in Seller's sole and absolute discretion. 2. ACCEPTANCE OF PURCHASED ASSETS AND RISK OF LOSS: Buyer is thoroughly familiar with the financial condition of the Business and has inspected the Equipment, the Inventory and Leasehold Improvements on the Premises and hereby accepts the Equipment, the Inventory and Leasehold Improvements "As-Is" "Where Is" subject to any and all defects. Buyer hereby assumes the risk of loss as to any of the Purchased Assets as of the date of this Agreement. 3. LIABILITY LIMITATION. Nothing herein contained will operate as an assumption by Buyer of any liabilities of Seller known or unknown except those liabilities and obligations expressly assumed by Buyer under the terms of this Agreement. 4. PURCHASE PRICE. The Purchase price for the Purchased Assets shall be in the amount of TWO HUNDRED TWENTY THOUSA?ND AND N01100 (5220,000.00) Dollars (the "Purchase Price'') payable as follows: a. Buyer has paid to Seller contemporaneously herewith or prior hereto the sum of $3,000.00, the receipt of which is hereby acknowledged by Seller. b. The balance of the purchase price in the amount of TWO HUNDRED SEVENTEEN THOUSAND AND N01100 ($217,000.00) DOLLARS shall be paid to Seller by Buyer together with interest thereon at the rate of 6.0% per annum by way of eighty-nine (89) equal monthly installments in the amount of $3,000.00 each commencing on May 1, 2005 and continuing on or before the first day of each month thereafter with a ninetieth and final payment of any and all outstanding principal and interest and any and all other amounts due to Seller under this agreement due and payable on October 1, 2012 in the form of a Balloon Payment (the "Maturity Date"). An amortization schedule regarding the above payments is attached hereto as Exhibit "H" and made part hereof. The monthly payments due to Seller hereunder shall be made without demand and without set-off, counter claim or deduction of any kind. All payments must be made payable and delivered to Seller at 598 `Vest High Street, Carlisle, PA 17013 or some other address provided by Seller to Buyer from time to time. 5. ALLOCATION OF PURCHASE PRICE. allocated as follows: a. Equipment $48,000.00 b. Inventory -food 2,000.00 C. Inventory- Supplies 600.00. The Purchase Price shall be 3 d. Leasehold Improvements 9,000.00 e. Goodwill 124,400.00 f Covenant not to compete 36.000.00 d. Total Purchase Price 5220,000.00 6. POSSESSION: Seller has hereby granted possession of the Premises and the Purchased Assets to Buyer under the terms and conditions set forth in this Agreement as of the date of this Agreement. 7. SELLER'S WARRANTY: Seller is the sole and unconditional owner of, with good and absolute legal and equitable title to all the Purchased Assets and the Purchased Assets are free and clear of all liens, security interests, pledges, charges and other encumbrances except as otherwise specifically provided for in this Agreement. Seller shall not sell, dispose of, transfer or encumber any of the Purchased Assets after the execution of this Agreement. 8. PRORATIONS. Rent, Operating Costs and any other amounts due to Landlord under the Lease for the Premises shall be prorated as of April 19, 2005. Thereafter any and all such charges shall be the responsibility of Buyer. 9. LEASE FOR THE PREMISES. Buyer and Seller have executed and shall immediately deliver to Landlord the Fourth Amendment to Lease, (the "Fourth Amendment") a copy of which is attached hereto as Exhibit "I" and made part hereof by reference. As set forth in the Fourth Amendment, Buyer hereby assumes any and all responsibility of Seller under the Lease, as of April 19, 2005, including, without limitation, the payment of any and all Rent, Additional Rent and other charges due to Landlord under the Lease. In the event that Buyer defaults in the payment of rent or other charges due to Landlord under the Lease, at Seller's option, Seller may pay any such amount directly to Landlord. In such event, any such amount advanced by Seller shall, at Seller's option, be due and payable by Buyer to Seller immediately upon Seller's demand or added to the outstanding principal due under this agreement and repaid to Seller together with interest thereon as set forth in paragraph 4(b) above. Buyer shall maintain at all times during the Lease term general liability insurance acceptable to Seller in connection 4 with Buyer's operation of the Business on the Premises in the amount of at least S 1,000,000.00 or some other amount as Seller may determine from time to time so that Seller receives at least the same protection adjusted for inflation. Such policies shall provide that the policy cannot be altered or cancelled without at least thirty (30) days prior written notice to Seller and shall insure Seller not withstanding the act or neglect of Buyer. Upon Seller's demand, Buyer shall provide Seller with original policies of insurance or such other evidence of insurance as Seller may require. In the event of failure to provide insurance as herein provided, Seller may, at Seller's option, obtain such insurance insuring Seller and Buyer shall pay the cost of same to Seller, on demand. In the event Landlord fails or refuses to sign the Fourth Amendment for any reason, Seller or Buyer may terminate this Agreement. In such, event, Buyer shall receive reimbursement of any amounts paid on account of purchase price and return possession of the Purchased Assets and the Premises to Seller in at least as good condition as of the date of this Agreement, upon which neither Buyer nor Seller shall have any further rights or obligations under this Agreement. 10. PREPAYMENT: Buyer may prepay this Agreement in whole or part at any time without penalty, provided that Buyer shall pay accrued interest on the principal amount prepaid to the date of payment. In the event of a full or partial pre-payment, there will be no changes in the due date or the amounts due hereunder unless Seller agrees to same in writing. A Prepayment will not be a substitute for any regularly scheduled payment. 11. EVENTS OF DEFAULT: If Buyer fails to pay the entire principal and other amounts due to Seller under this Agreement on or before the Maturity Date, or if any and all representations and warranties made by Buyer in this Agreement are later determined to be inaccurate in any respect, or if any action or proceeding is commenced which materially affects the interest of Seller hereunder or Buyer shall become "insolvent" as that term is defined under the Federal Bankruptcy Code or Buyer shall cause to be filed a Petition in Bankruptcy to declare Buyer a bankrupt or a Petition in involuntary Bankruptcy is filed against Buyer before any Bankruptcy Court, or if a beneficial interest in Buyer is sold or transferred where Buyer is not a natural person or if any default is made in any payment on the date on which it shall fall due, or Buyer 5 fails to operate the Business on the premises to at least the standards now maintained by Seller for the Business on the Premises, or Buyer fails to observe and perform each and every obligation of Buyer under the Lease at such time that such observance or performance is due, or Buyer fails to observe or perform each and every obligation of Buyer set forth in this Agreement at such time that such observance of performance is due, then Seller, at Seller's option, may: (a) without declaring the unpaid principal balance to be due, collect all installments of principal or interest, or both; and all other sums due under this Agreement from time to time, by any action provided in this Agreement or provided at law or in equity; (b) declare immediately due and payable the entire unpaid balance of principal together with interest accrued thereon as set forth above, together with all other sums due by Buyer under this Agreement, all cost of suit and other expenses in connection therewith, and reasonable attorneys' fees; (c) terminate this agreement and immediately re-enter the Premises and retake possession of the Premises and the Purchased Assets and/or assume the operation of the Business on the Premises whereupon Buyer shall have no further rights under this Agreement, the Lease or the Assumption Agreement; (d) exercise any other right or remedy as may be provided in this Agreement or provided at law or in equity. Payment of all or any part of such amounts may be recovered at any time or from time to time by anyone or more of the foregoing remedies. 12. PAYMENT OF COSTS AND ATTORNEY'S FEES: Buyer shall be liable, and 6 shall reimburse Seller ON DENIAND for all reasonable attorney's fees and expenses incurred by Seller in the event that Seller engages an attorney to represent Seller in connection With (1) any alleged default by Buyer under this Agreement or any other agreement issued in connection with or arising out of this Agreement; (?) the enforcement of any of the Seller's rights and remedies under this Agreement or any other agreement issued in connection with or arising out of this Agreement; (3) any potential and' r actual Bankruptcy or other insolvency proceedings /0 1 commenced by or against Buyer; and/or (4) any potential and/or actual litigation arising out of or related to any of the foregoing. 13. POST DEFAULT INTEREST: The greater of the legal rate of interest or the rate of interest set forth in this Agreement shall continue to accrue on and after any default of Buyer hereunder and shall continue to accrue on and after the date of entry of judgment against Buyer. 14. REMEDIES CUMULATIVE AND SUCCESSIVE: The remedies of Seller as provided in this Agreement and the warrants contained therein shall be cumulative and concurrent, and may be pursued single, successively or together at the sole discretion of Seller, and may be exercised as often as occasion therefore shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 15. WAIVERS: Buyer hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Seller under the terms of this Agreement, as well as all benefit that might accrue to Buyer by virtue of any present or future laws, exempting any property, real or personal of Buyer, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from. civil process, or extension of time for payment; and Buyer agrees that any real estate and/or personal property that may be levied upon pursuant to a judgment obtained by ,/irtue hereof, on any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by Seller. 16. TIME OF THE ESSENCE: Time is considered to be of the essence in all respects with regards to Buyer's performance of Buyer's obligations set forth in this Agreement, or any other agreement issued in connection with or arising out of this Agreement. 17. INSPECTION: Buyer shall: a. from time to time and at all reasonable times, allow Seller, by or through any of its officers, agents, attorneys, or accountants, to examine or inspect the Premises and any and all of the Equipment and Leasehold Improvements and Buyer's operation of the Business on the Premises. Buyer shall do, obtain, make , execute and deliver all such additional and further acts, things, deeds, assurances and instruments as Seller may require to vest in and assure to Seller its rights hereunder and in or to any and all of the Equipment and Leasehold Improvements, and the proceeds thereof, b. keep, at Buyer's expense, the Equipment and Leasehold Improvements in good order and repair at all times and immediately notify Seller of any event causing a material loss or decline in value of the Equipment or Leasehold Improvements whether or not covered by insurance and the amount of such loss or depreciation; c. only use or permit the Premises, Equipment and Leasehold Improvements to be used in accordance with all applicable federal, state, county and municipal Laws and regulations; d. at Buyer's expense, have and maintain insurance at all times with respect to all of the Equipment and Leasehold Improvements against risk of fire (including so-called extended coverage), theft, sprinkler leakage, and other risks (including risk of flood if any of the above is maintained at a location in a flood hazard zone) as Seller may require, in such form, in such amount, for such period and written by such companies as may be satisfactory to Seller in Seller's sole discretion. Such policies shall provide that the policy cannot be altered or cancelled without at least thirty (30) days prior written notice to Seller and shall insure Seller not withstanding the act or neglect of Buyer. Upon Seller's demand, Buyer shall provide Seller with original policies of insurance or such other evidence of insurance as Seller may require. In the event of failure to provide insurance as herein provided, Seller may, at its option, obtain such insurance and Buyer shall pay the cost of same to Seller, on demand. Proceeds of insurance may be applied by Seller to reduce the amounts due to Seller under this Agreement or to repair or replace the Equipment or Leasehold Improvements, all in Seller's sole and absolute discretion. 18. CONFIDENTIALITY OF RECIPES: Seller acknowledges and agrees that the Recipes constitute trade secrets of Seller, and Buyer, in consideration of Seller's agreements set forth in this agreement and otherwise intending to be legally bound, shall keep the recipes confidential at all times and shall not provide or make known to any other persons the Recipes except to such employees of Buyer who have executed confidentiality agreements with Buyer in form and content acceptable to, Seller and who are necessary for the preparation of food in connection with the Business on the Premises. Buyer shall not use or cause to be used the Recipes in connection with the preparation of food at any location other than the Premises and then only for the preparation of food to be served on the Premises or in connection with delivery of food prepared on the Premises to non-residential customers. Seller agrees that in the event of a breach or a threatened breach by the Buyer or Buyer's employees or agents of the provisions of this paragraph, Seller shall be entitled to an injunction restraining Seller or such Seller's employees or agents from disclosing , in whole or in part, the Recipes. Anything to the contrary C) M set forth in this Agreement not withstanding, Buyer shall, at Buyer's expense, affirmatively enforce the confidentiality agreements against its employees and agents. In the event Buyer fails to enforce the said confidentiality agreements against its employees or agents, Seller may, in addition to any other remedies reserved to Seller under this Agreement and without waiving Buyer's default of the terms and condition of this Agreement as they relate to Buyer's failure to so enforce the confidentiality agreements or otherwise, take any and all action necessary to enforce the confidentiality agreements against Buyer's employees or agents. In such event, Buyer shall indemnify and save harmless Seller of and from any and all costs and expense incurred by Seller in connection with such enforcement including, without limitation, Seller's reasonable attorney's fees and shall pay to Seller any and all such costs and expenses immediately upon Seller's demand. In addition, nothing shall prohibit Seller from pursuing any other remedies available to Seller for such breach or threatened breach, including the recovery of damages from Buyer or Buyer's employees or agents. Buyer's agreements set forth in this paragraph shall survive and continue to be enforceable by Seller even after payment of all amounts due to Seller under this Agreement or earlier termination of this Agreement for any reason. 19. NON-COMPETITION OF SELLER: In exchange for Buyer's agreements and payments set forth herein and in full consideration thereof, Seller agrees not to open or operate as a principal or equity owner any restaurant within a three (3) mile radius of the Premises until the earlier of Buyer's payment of all amounts due to Seller under this Agreement or termination of this Agreement for any reason. Anything to the contrary set forth in this paragraph or Agreement not withstanding, nothing herein shall prohibit Seller from the ownership or operation of the restaurant situate at 598 `Vest High Street, Carlisle, PA 17013 known as N-11seno Pizza II Kistorante ("Miseno Pizza II") 10 20. I NO RESIDENTIAL DELIVERY: Buyer shall not engage in the delivery of pizza or other prepared food to residences until all amounts have been paid to Seller under this Agreement. 21. COMPLLkNCE WITH LAW: Buyer, at Buyer's expense, shall at all times throughout the term of this Agreement, maintain any and all licenses, if any, required by any state, federal or local governmental agency necessary to operate the Business on the Premises. Buyer shall also be responsible and pay timely any and all taxes fees and 'other charges due to the Commonwealth, any political subdivision and the United States in connection with the operation of the Business on the Premises. 22. HOURS OF OPERATION: Buyer shall keep the Business open to the public at least Monday through Thursday and Sunday every week from the hours of 10:00 A.M. to 11:00 P.M. and 10:00 A.M. to 12:00 midnight on Friday and Saturday every week until all amounts due to Seller under this agreement have been paid in full. 23. BUYER'S USE OF NAME: Buyer shall use the name "Miseno's Pizza" for the Business at all times during the term of this Agreement unless otherwise agreed by Buyer and Seller in writing or unless it is later determined that the name "Miseno's Pizza" is not available to Buyer or Seller for use for any reason. Upon payment of the full Purchase Price and any and all other amounts due to Seller under this Agreement, Buyer shall have a license to use the name "Miseno's Pizza" for the Business on the Premises so long as Buyer is engaged in the restaurant business on the Premises. Buyer shall not assign or transfer the right to use the name "Miseno's Pizza" to any other party without Seller's prior written consent, which consent may be withheld for any reason whatsoever without regard to reasonableness. Anything to the contrary set forth in this Agreement not withstanding, nothing herein shall be construed as a warranty or representation on the part of Seller of the availability of the name ` itiliseno's Pizza" and Buyer acknowledges and agrees that Seller has never filed a fictitious name or taken any steps to assure that the said name is available for use and that Buyer shall not have any recourse against Seller for breach of this Agreement or for any damages or expense which Buyer may suffer in the event that it is later determined that the said name is, in fact, unavailable or in the event a third party claims an interest in the name, "ilyliseno's Pizza." Seller is free but under no obligation to file a fictitious name for ` Miseno's Pizza" and to take any other steps to secure rights to the name "Miseno's Pizza" at any time or from time to time in the future. The agreements of Buyer and Seller set forth in this paragraph shall survive and continue in full force and effect even after payment of all amounts due to Seller under this Agreement. 24. SELLER'S PAYMENT OF TAlYES. Except for sales tax imposed by the Commonwealth of Pennsylvania for the transfer of the Purchased Assets which shall be paid by Buyer, Seller shall be responsible for the payment of all federal, state and local taxes which relate to the transfer of the Purchased Assets hereunder, and which are attributable to time periods up to and including April 19, 2005, after which, any and all such taxes shall be the responsibility of and paid by Buyer. 25. BUYER'S INDEMNITY. Buyer hereby indemnifies, defends and holds Seller harmless from and against all claims, liabilities, losses, costs, damages,and expenses, (including attorneys` fees), asserted against Seller which arise in any manner out of Buyer's operation of the Business on the Premises after April 19, 2005 and including, without limitation, sales taxes imposed on the sale of the Purchased Assets and in connection with or in any manner arising out of Buyer's failure to observe or perform each and every obligation under the Lease at such time that such observance or performance is due. The indemnification set forth in this paragraph shall survive and continue in full force and effect even after payment of all amounts due to Seller under this Agreement for so long as Seller continues to be obligated as a Tenant under the Lease as amended. I2 26. EXECUTION OF OTHER DOCUMENTS. Buyer and Seller shall execute from time to time anv and all further documents, instruments or agreements and do all other things and deliver all items, which may be reasonably necessary to effectuate and carry out any and all of the provisions of this Agreement and the transactions provided for herein. 27. NOTICES. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, postage prepaid, by registered or certified mail, return receipt requested, to the addresses set forth below, or to such other address as any party hereto may properly designate in writing received by the other party: Seller: Vito Iannuzzi 552 Crossroad School Road Carlisle, PA 17013 Buyer: Strato Marco Della Ragione 1225 Ritner Highway Carlisle, PA 17013 29. MISCELLANEOUS a. All of the terms of this Agreement shall be binding upon and inure to the benefit of, and shall be enforceable by the heirs, executors, administrators, successors, legal representatives and assigns of Buyer and Seller. b. This Agreement may not be revised, modified or waived except in writing signed by all the parties hereto. C. There are no oral agreements by and among the parties hereto. This Agreement constitutes the complete agreement of the parties respecting the subject mater hereof. 13 d. This Agreement has been negotiated and executed in Pennsylvania and shall be governed by the substantive law applicable to contracts made and to be performed in Pennsylvania. e. If any portion of this Agreement is adjudged invalid, unenforceable or void, the remainder shall remain in full force and effect. f. No failure of Buyer or Seller to exercise and no delay by Buyer or Seller in exercising any right or remedy hereunder shall operate as a waiver thereof. A waiver on one occasion shall not be construed as a waiver or as a bar to any right or remedy on any future occasion for that breach or default or any subsequent breach or default. g. Any headings preceding the text of the paragraphs hereof are inserted solely for the convenience of reference and shall not constitute a part of the agreement, nor shall they affect its meanings, construction or effect. h. This Agreement may be executed in counterpart, copies each of which shall be deemed an original, and all of which when taken together, shall be deemed a fully executed ori ginal. i. The parties represent and warrant that there are no brokers or sales agents involved in this transaction. Each party indemnifies the other party from any additional claims made as a result of the others breach of this representation and warranty. j. Buyer shall not assign Buyer's rights or obligations under this Agreement without the prior written consent of Seller which consent may be withheld by Seller for any reason whatsoever and without regards to the reasonableness thereof k. BUYER AND SELLER HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION WHICH MAY ARISE BETWEEN THE 14 PARTIES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT ISSUED IN CONNECTION WITH THIS AGREEMENT. BUYER AGREES TO THE JURISDICTION OF THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA AND THE BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA AS THE COURTS OF PROPER JURISDICAITON WITH REGARDS TO ANY LEGAL MATTERS ARISING OUT OF THIS AGREEMENT AND ANY AGREEMENT ISSUED IN CONNECTION WITH THIS AGREEMENT. 29. WARRANT OF ATTORNEY TO CONFESS JUDGMENT. (A) BUYER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, WITH OR WITHOUT DEFAULT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST BUYER FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS AGREEMENT, TOGETHER WITH ANY AND ALL CHARGES, TAXES AND LIENS PAID BY SELLER, HIS SUCCESSORS OR ASSIGNS, AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PURCHASED ASSETS, WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT FOR LIEN PRIORITY PURPOSES, EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS THAN TWO THOUSAND DOLLARS (52,000.00), ADDED FOR ATTORNEYS' COLLECTION FEES, WITH THE ACTUAL AMOUNT OF ATTORNEYS' FEES AND COSTS TO BE DETERMINED IN ACCORDANCE WITH THE SECTION OF THIS AGREEMENT ENTITLED 15 "PAYMENT OF COSTS AND ATTORNEYS' FEES." TO THE EXTENT PERMITTED BY LAW. BUYER RELEASES ALL ERRORS IN SUCH PROCEEDNGS. IF A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF SELLER SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AGREEMENT AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST BUYER SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS SELLER SHALL FIND IT NECESSARY AND DESIRABLE AND THIS AGREEMENT SHALL BE A SUFFICIENT WARRANT THEREFORE. SELLER MAY CONFESS ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY JUDGMENT CONFESSED AGAINST BUYER HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR ON BUYER'S BEHALF FOR ANY REASON, SELLER IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST BUYER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR HEREIN, IF DOING SO WILL CURE ANY ERRORS OR DEFECTS N SUCH PRIOR PROCEEDINGS. (B) UPON DEFAULT BY BUYER OF ANY OF BUYER'S OBLIGATIONS UNDER THIS AGREEMENT, IN ADDITION TO THE ABOVE, IT SHALL BE LAWFULL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR 16 BUYER AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER BUYER, AND TO SIGN AN AGREEMENT FOR ENTERING Iii ANY' COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT AGAINST BUYER AND ALL PERSONS CLAIMING BY THROUGH OR UNDER BUYER AND. THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY SELLER OF POSSESSION OF THE PREMISES, FOR WHICH THIS AGREEMENT SHALL BE SUFFICIENT WARRANT; THEREUPON, IF SELLER SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR NOTICE OR PROCEEDING WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT POSSESSION OF THE PREMISES REMAIN N OR BE RESTORED TO BUYER, SELLER SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS AGREEMENT OR BUYER'S RIGHT OF POSSESSION OF THE PREMISES AS SET FORTH ABOVE, TO BRING ONE OR MORE FURTHER ACTIONS AS SET FORTH IN THIS PARAGRAPH TO RECOVER POSSESSION OF THE PREMISES AND CONFESS JUDMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES AS SET FORTH N THIS PARAGRAPH. BUYER ACKNOWLEDGES AND AGREES THAT THIS DOCUMENT CONTAINS PROVISIONS UNDER WHICH SELLER MAY ENTER JUDGMENT BY CONFESSION AGAINST BUYER. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING BEFORE JUDGMENT IS ENTERED ON THE VALIDITY OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST IT BY 17 SELLER HEREUNDER, BUYER FREELY, KNOtiN'INGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO SELLER'S ENTERING JUDGMENT AGAINST BUYER BY CONFESSION PURSUAINT TO THE TERAIS HEREOF. THE BUYER ALSO ACKNOWLEDGES AND AGREES THAT THIS DOCUMENT CONTAINS PROVISIONS UNDER WHICH SELLER MAY, AFTER ENTRY OF : JUDGMENT AND WITHOUT NOTICE AND A HEARING, FORECLOSE UPON, ATTACH, LEVY ON OR OTHERWISE SEIZE PROPERTY OF THE BUYER IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. BEING FULLY AWARE OF ITS RIGHTS AFTER JUDGMENT IS ENTERED, BUYER HEREBY FREELY,' KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO SELLER'S TAKING SUCH.ACTIONS AS MAY BE PERMITTED UNDER APPLICABLE LAW WITHOUT PRIOR NOTICE TO BUYER. 30. Buyer hereby certifies that Buyer's annual income is in excess of S10,000.00. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date first above mentioned. WITNESS r SJn ? trato Marco Della Ragione C Vti?yer") ?- Rosalba Della Ragio "Buyer") Vito Iannuzzi ("Seller") is A V/V McNees Wallace & Nurick LLC attorneys at law SUSAN V. METCALFE DIRECT DIAL: (717) 237-5412 E-MAIL ADDRESS: SMETCALFE@MWN.COM March 8, 2007 Mr. Vito lannuzzi 552 Crossroad School Road Carlisle, PA 17013 Re: Miseno's Pizza II Dear Mr. lannuzzi: This office represents Strato Marco Della Ragione. On April 19, 2005, you and Mr. Ragione entered into an Installment-Asset Sale Agreement ("Agreement") related to the sale of Miseno's Pizza located at 1225 Ritner Highway, Carlisle, Pennsylvania 17013 (the "Premises"). We have been advised that, although you have been operating a restaurant at 598 West High Street since the time the parties executed the Agreement, you have since substantially changed the nature of that restaurant so that it is now directly competing with Mr. Ragione's restaurant and causing confusion among customers. At the time you entered into the Agreement, your restaurant on West High Street operated as a pub under the trade name "Miseno's Risto Pub." Subsequently, you substantially remodeled the premises, adding bright lighting and a pizza display counter, and changed one or more of your signs to read "Miseno's Pizza." Additionally, you substantially changed your menu and began offering primarily pizza and subs, including carry-out pizza pies and slices. Your actions are causing confusion among customers who think that your restaurant on West High Street and Mr. Ragione's pizza shop are both part of the same business operation. Customers regularly call Mr. Ragione's shop to order pizza, expecting to pick it up at your location, and vice versa. Customers have also presented Mr. Ragione with coupons issued by your restaurant. This has put Mr. Ragione in the position of either honoring a price that he never intended to offer or disappointing potential customers. It is our position that your actions in deliberately altering the appearance, name, and menu offerings of your restaurant to resemble those of Mr. Ragione's restaurant constitute unfair trade practices, and may be a violation of the terms of the non-competition clause of the Agreement. P.O. Box 1166. 100 PINE STREET - HARRISBURG, PA COLUMBUS, OH - STATE COLLEGE, PA - LANCASTER, PA - HAZLETON, PA - WASHINGTON, DC Accordingly, we demand that you immediately cease and desist operating your 598 West High Street restaurant as a pizza shop. If within ten (10) days of the date of this letter, Mr. Vito lannuzzi March 8, 2007 Page 2 we do not receive written confirmation from you that you will do so, Mr. Ragione will commence legal action to enforce it, including, but not limited to, seeking an injunction. Sincerely, McNEES WALLACE & NURICK LLC By YUAW Y Susan V. Metcalfe SVM/mrs Mr. Vito lannuzzi March 8, 2007 Page 3 bc: Strato Della Ragione rN IL rr j r HI pk J I', ,APR _g Pik KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358, 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, V. VITO IANNUZZI, Defendant. I.VANip', Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO./;, o??Sl (Civil Term) JURY TRIAL DEMANDED EMERGENCY PETITON FOR PRELIMINARY INJUNCTION AND NOW comes the Plaintiffs, Strato Della Ragione and Rosalba Della Ragione, by and through their attorney, Hilary Vesell, Esq. and Kope & Associates, LLC, and files this Motion for Injunction on an emergency basis and in support thereof, avers the following: INTRODUCTION This petition / motion is a companion to a civil action brought by Plaintiffs, Strato Della Ragione and Rosalba Della Ragione (hereinafter "Plaintiffs"), against Defendant, Vito lannuzzi, (hereinafter "Defendant"), for damages resulting from the actions of breach of contract and equity in the form of an injunction of pizza delivery clause that said Defendant breached arising out of contract executed on April 19, 2005, as well as injunction relief to prevent a certain execution of judgment filed at docket 2012-1369. PARTIES 1. Plaintiffs, Strato Della Ragione and Rosalba Della Ragione, currently own and operate Miseno's Pizza located at 1225 Ritner Highway, Carlisle, Cumberland County, PA 17013. 2. Defendant Vito lannuzzi is an individual residing at 3 Rockwell Court, Carlisle, Cumberland County, PA 17050. 3. Plaintiffs and Defendant executed the contract in Cumberland County, Pennsylvania for the sale of Miseno's Pizza also located in Cumberland County, Pennsylvania. JURISDICTION AND VENUE 4. Jurisdiction and venue are appropriate in this Court because the incident at issue out of which the Plaintiff's claims arise occurred in Cumberland County, Pennsylvania. 5. This Court has the power under the Rules of Civil Procedure and Title 42 to issue a preliminary injunction in this matter, as the right to relief is clear, and irreparable harm will occur if not so issued. SERVICE ON DEFENDANT 6. Service is being effectuated through the Sheriff of the underlying complaint, but this emergency petition along with a copy of the underlying complaint has been served on attorneys of record for defendant, in the action docketed at 2012-1369 by facsimile prior to the filing of this emergency petition. Page 2 of 8 FACTS 7. On or about April 1, 2005, the Plaintiffs purchased Miseno's Pizza for $270,000 plus interest from the Defendant. 8. The Plaintiffs paid the Defendant $50,000 in cash'. The Plaintiffs were then to pay the Defendant $3,000 a month until the contract stated purchase price plus interest was paid to the Defendant who would hold the note and act as a bank for the Plaintiffs. 9. A contract was executed on April 19, 2005, which contained a non-competition clause and no residential delivery of pizza clause. See Exhibit "A" consisting of the contract for sale of the restaurant with the non-competition clause and the no residential delivery clause. 10. The non-competition clause states that in exchange for Buyer's agreements and payments set forth and in full consideration thereof, Seller agrees not to open or operate as principal or equity owner any restaurant within a three (3) mile radius of the Premises until the earlier of Buyer's payment of all amounts due to Seller under this Agreement or termination of this Agreement for any reason notwithstanding the restaurant situation at 598 West High Street, Carlisle, PA 17013 known as Miseno Pizza II Ristroante ("Miseno Pizza II"). 11. At the time the contract was executed Defendant's Restaurant at 598 West High Street, Carlisle, PA was operating as a Pub and named Miseno's Risto Pub. ' This payment was not part of the writing executed by the parties. Page 3 of 8 12. Within two weeks after the execution of the contract, the Defendant began copying the menu of the Plaintiffs and selling pizzas at a deeply discounted price to that of the Plaintiffs. 13. After six (6) months the Defendant began renovating his restaurant to more closely resemble the pizza shop of the Plaintiffs. 14. On March 8, 2007, the Plaintiffs sent the Defendant a letter demanding that he stop violating the contract. See Exhibit "B" consisting of the demand letter. 15. However, the Defendant did not heed the letter and the Plaintiffs did not have the resources at the time to enforce their legal rights. Additionally, the father of the Plaintiffs asked that they not sue the Defendant, a childhood neighbor of the father from the same village in ltaly2. 16. Eventually the Defendant began expanding his business and, thereby, effectively taking all the business of the Plaintiffs. 17. The Defendant had begun violating the no residential delivery clause in the contract regarding the home delivery of pizza, thereby also further reducing the business of the Plaintiffs within approximately six (6) months of the execution of the contract. See Exhibit "A. YY 18. On February 29, 2012, the Defendant filed a Notice Under Rule 2973.2 of Judgment and Execution and a Notice Under Rule 2958.3 of Judgment and Execution Thereon as well as an Ejectment Action. On March 1, 2012, Defendant also filed a Complaint in Confession of Judgment Under Rule 2951. All at docket 2012-1369. z Parole evidence of this matter and many others is required to understand the total contract of the parties, which was not limited to the writing. Page 4 of 8 COUNTI PRELIMINARY INJUNCTION TO ENJOIN PIZZA DELIVERY 19. The averments set forth in the preceding paragraphs are incorporated herein by reference as if fully set forth herein. 20. Defendant knowingly began competing with the business of the Plaintiffs virtually as soon as he sold the business to them, and most specifically violated the clause prohibiting the residential delivery of pizza (Clause twenty (20) of the writing which in part constitutes the contract). 21. Defendant's course of conduct is effectively confusing customers and looting of Plaintiff's of their business as both businesses go by the same moniker. 22. Many of the original customers of Miseno's were Dickinson College students, who trusted the product name, as well as businesses and residents of Carlisle. 23. The parties contemplated that neither Miseno's nor Miseno's II would poach or compete with each other by associating the name and food reputation with home, business, or dorm room delivery3. 24. This ongoing breach continues to bleed business and cash from the Plaintiffs. 25. The Plaintiffs have a right to enforce the contract and are still in business. 26. Defendant should not profit from his willful violation of the contract. 27. Irreparable harm is occurring, and the right to relief is clear, as the contract specifically excludes pizza delivery by Defendant. 3 Further they clearly did this as this would be the only area of possible overlap, if Miseno's II had not altered its format from a pub with Italian food, to a pizza parlor format similar to Miseno's. Page 5 of 8 WHEREFORE, the Plaintiffs demand judgment in their favor against Defendant in the form of an injunction requiring the cessation of all pizza delivery services by Defendant trading as Miseno's II and such further relief as the Court deems just and proper. COUNT II PRELIMINARY INJUNCTION IN EQUITY TO STAY WRIT OF EXECUTION AT CUMBERLAND COUNTY CIVIL DOCKET 2012-1369 28. A writ of execution has been lodged at docket 2012-1369 with the Cumberland County Prothonotary. 29. This is the result of a confession of judgment contained in the contract Defendant breached, and which is subject to the action at this docket. 30. Irreparable harm will occur to Plaintiffs in this action (Defendants in that docket) should the Sheriff levy and take the property or inventory. 31. The circumstances (the alleged default) creating the basis of the filing of the confession of judgment was actually perpetrated and created by the bad acts of Defendant in violation of the contract and non-compete clauses, including the pizza delivery clause. 32. Plaintiffs need to maintain the status quo so they can continue working and maintaining the business asset(s) they purchased. 33. Because Defendant filed that confession where he created the conditions antecedent, it would be unfair to allow him to execute that judgment and force Plaintiffs to fold. Page 6 of 8 34. This Court needs to sort out the true contract of the parties, and assign damages and arrearages to the appropriate party, but maintaining the status quo will prevent an injustice from occurring while these surcharges and faults are assigned. 35. The ongoing breach continues to rob business and cash from the Plaintiffs. 36. Plaintiffs have a right to enforce the contract and is still in business as of this filing. 37. Defendant should not profit from his willful violation of the contract4. 38. The contract term on pizza delivery is clear and Plaintiffs have requested a preliminary injunction above, simultaneous hereto. WHEREFORE, the Plaintiffs demand judgment in their favor against Defendant in the form of a stay prohibiting the Sheriff and Defendant from executing on the confession of judgment filed at Cumberland County Docket # 2012-1369, until resolution of this lawsuit. Date: Vlgh,'? Respectfully Submitted, KOPE & ASSOCIATES, LLC s Hilary Vesell, E q. 4 Given the $50,000.00 unrecorded payment, it is clear that there was more to this agreement then was reduced to the writing, and the Italian language oral agreements prior to and at closing are as much part of this contract as that payment. Page 7 of 8 VERIFICATION I, Strato Della Ragione and Rosalba Della Ragione, the Plaintiffs in this matter, have read the foregoing Emergency Petition for Preliminary Injunction. I verify that my averments in this Emergency Petition for Preliminary Injunction are true and correct and based upon my personal knowledge. I understand that any false statements. herein are made subject to the penalties of 18 Pa.C.S. § 4904 relatingAo unsworn falsifications to authorities. Dated: Zq o Della Ragione Dated: Rosalba Della Ragione Page 8 of 8 KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com Attorney for Plaintiffs STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. (Civil Term) V. VITO IANNUZZI, Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire, hereby certify that on April 9, 2012, I served a copy of the foregoing Emergency Petition for Preliminary Injunction by first class, United States mail to the following: Vito Iannuzzi 3 Rockwell Court Carlisle, PA 17015 Richard Mislitskey, Esq. One West High Street P.O. Box 1290 Carlisle, PA 17013 KO( PE & ASSOCIATES, LC J1dmu Hilary Ve ell, squire ID # 30835 Kope & Associates, LLC 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 INSTALLMENT - ASSET SALE AGREEMENT THIS AGR.EEIMENT is entered into this (r.: day of April, 200d, by and between Vito Iannuzzi t/d/b/a Miseno's Pizza ("Seller") and Strato Marco Delle Rae one and Rosalba Delle Raaione (collectively "Buyer"). BACKGROUND A. Seller is engaged in a pizza restaurant business known as Nfiseno's Pizza (the "Business") located at 1226 Ritner Highway, Carlisle, Pennsylvania 171713, be' =1 space 1 consisting of approximately 1600 square feet as more particularly set forth and described on Exhibit "A" attached hereto and made part hereof by reference (the "Premises"). B. Seller leases the Premises from 19T Carlisle, L.P. ("Landlord") under that certain lease dated March, 1994, a copy of which is attached hereto as Exhibit "B" and made part hereof (the "Initial Lease"). C. The Initial Lease has been extended and modified as set forth in the letter agreements dated July 18, 2000 ("2000 Amendment"), December 6, 2001 ("2001 Amendment") and July 23, 2003 ("2003 Amendment"). Copies of the 2000 Amendment, 2001 Amendment and 2003 Amendment referred to herein collectively as the "Amendments" are attached hereto as Exhibits "C", "D" and "E" respectively and made part hereof. The Initial Lease as amended by the Amendments is referred to herein collectively as the "Lease". D. Seller desires to sell and Buyer desires to purchase certain of the assets of or pertaining to the Business upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the above Background which is incorporated herein by reference as if set forth in full and the mutual Covenants and agreements contained herein, the parties, intending to be legally bound, agree as follows: 1. ACQUIRED ASSETS. In exchange for the consideration set forth below, subject to and upon the terms and conditions contained herein, Seller shall, upon payment of the Purchase Price identified in paragraph 4 below, sell, assign, transfer and convey to Buyer by bill EXHIBIT A of sale, endorsement, assignment or other appropriate instrument, free and clear of all liens, claims or encumbrances, except those specifically agreed to be assumed by Buyer herein, and Buyer shall purchase and accept all the equipment set forth on Exhibit 'T" attached hereto and made part hereof (the " Equipment"), together with the following items found on the Premises as of April 19, 2005: all inventory - food, inventory - supplies (collectively the "Inventory") and leasehold improvements on the Premises as of April 19, 2005 (the "Leasehold Improvements") and good will of the business, including, without limitation, the right to use the name of the Business being "Miseno's Pizza" under the terms and conditions set forth in this Agreement and all recipes (the "Recipes") for the preparation of the food items on the menu for the Business as of April 19, 2005, a copy of which is attached hereto as Exhibit "G" (collectively referred to herein as the "Purchased Assets"). It is understood and agreed between the parties that all of the Purchased Assets and any and all duties and obligations to be undertaken by Buyer as part of the transactions contemplated by the parties hereto relate primarily to Miseno's Pizza located on the Premises which Seller currently operates. Buyer acknowledges and agrees that Seller is the principal share holder of Miseno Pizza, Inc., which currently owns and operates a restaurant situate at 598 West High Street, Carlisle, PA 17013 known as Miseno Pizza _TI Ristorante ("Miseno Pizza II") which is not included in the sale under this agreement and, anything to the contrary set forth in this Agreement not withstanding, Seller shall continue to operate said restaurant under the name "Miseno Pizza IT Ristorante" or some other name as Seller may determine from time to time in Seller's sole and absolute discretion. 2• ACCEPTANCE OF PURCHASED ASSETS AND RISK OF LOSS: Buyer is thoroughly familiar with the financial condition of the Business and has inspected the Equipment, the Inventory and Leasehold Improvements on the Premises and hereby accepts the Equipment, the Inventory and Leasehold Improvements "As-Is" "Where Is" subject to any and all defects. Buyer hereby assumes the risk of loss as to any of the Purchased Assets as of the date of this Agreement. 3. LIABILITY LINTITATION. Nothing herein contained will operate as an assumption by Buyer of any liabilities of Seller known or unknown except those liabilities and obligations expressly assumed by Buyer under the terms of this Agreement. 4. PURCI-L-?SE PRICE. The Purchase price for the Purchased Assets shall be in the amount of TR?O HUNDRED TWENTY THOUSAND AiND N01100 (5220,000.00) Dollars (the "Purchase Price") payable as follows: a. Buyer has paid to Seller contemporaneously herewith or prior hereto the sum of 53,000.00, the receipt of which is hereby acknowledged by Seller. b. The balance of the purchase price in the amount of TWO HUNDRED SEVENTEEN THOUSAND AND N01100 (5217,000.00) DOLLARS shall be paid to Seller by Buyer together with interest thereon at the rate of 6.0% per annum by way of eighty-nine (89) equal monthly installments in the amount of 53,000.00 each commencing on May 1, 2005 and continuing on or before the first day of each month thereafter with a ninetieth and final payment of any and all 'outstanding principal and interest and any and all other amounts due to Seller under this agreement due and payable on October 1, 2012 in the form of a Balloon Payment (the "Maturity Date"). An amortization schedule retarding the above payments is attached hereto as Exhibit "H" and made part hereof. The monthly payments due to Seller hereunder shall be made without demand and without set-off, counter claim or deduction of any kind. All payments must be made payable and delivered to Seller at 598 lVest High Street, Carlisle, PA 17013 or some other address provided by Seller to Buyer from time to time. 5. ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated as follows: a. Equipment S48,000.00 b. Inventory - food 2,000.00 C. Inventory-Supplies 600.00. 3 d. Leasehold Improvements 9,000.00 e. Goodwill 124,400.00 f Covenant not to compete 36.000.00 d. Total Purchase Price 5220,000.00 6. POSSESSION: Seller has hereby granted possession of the Premises and the Purchased Assets to Buyer under the terms and conditions set forth in this Agreement as of the date of this Agreement. 7. SELLER'S WARR INTY: Seller is the sole and unconditional owner of, with good and absolute legal and equitable title to all the Purchased Assets and the Purchased Assets are free and clear of all liens, security interests, pledges, charges and other encumbrances except as otherwise specifically provided for in this Agreement. Seller shall not sell; dispose of, transfer or encumber any of the Purchased Assets after the execution of this Agreement. S. PRORATIONS. Rent, Operating Costs and any other amounts due to Landlord under the Lease for the Premises shall be prorated as of April 19, 2005. Thereafter any and all such charges shall be the responsibility of Buyer. 9. LEASE FOR THE PREMISES. Buyer and Seller have executed and shall immediately deliver to Landlord the Fourth Amendment to Lease, (the "Fourth Amendment") a copy of which is attached hereto as Exhibit "I" and made part hereof by reference. As set forth in the Fourth Amendment, Buyer hereby assumes any and all responsibility of Seller under the Lease, as of April 19, 2005, including, without limitation, the payment of any and all Rent, Additional Rent and other charges due to Landlord under the Lease. In the event that Buyer defaults in the payment of rent or other charges due to Landlord under the Lease, at Seller's option, Seller may pay any such amount directly to Landlord. In such event, any such amount advanced by Seller shall, at Seller's option, be due and payable by Buyer to Seller immediately upon Seller's demand or added to the outstanding principal due under this agreement and repaid to Seller together with interest thereon as set forth in paragraph 4(b) above. Buyer shall maintain at all times during the Lease term general liability L--isurance acceptable to Seller in connection 4 with Buyer's operation of the Business on the Premises in the amount of at least 51,000,000.00 or some other amount as Seller may determine from time to time so that Seller receives at least the same protection adjusted for inflation. Such policies shall provide that the policy cannot be altered or cancelled without at least thirty (30) days prior written notice to Seller and shall insure Seller not withstanding the act or neglect of Buyer. Upon Seller's demand, Buyer shall provide Seller with original policies of insurance or such other evidence of insurance as Seller may require. In the event of failure to provide insurance as herein provided, Seller may, at Seller's option, obtain such insurance insuring Seller and Buyer shall pay the cost of same to Seller, on demand. In the event Landlord fails or refuses to sign the Fourth Amendment for any reason, Seller or Buyer may terminate this Agreement. In such event, Buyer shall receive reimbursement of any amounts paid on account of purchase price and return possession of the Purchased Assets and the Premises to Seller in at least as good condition as of the date of this Agreement, upon which neither Buyer nor Seller shall have any further rights or obligations under this Agreement. 10, PREPAYMENT: Buyer may prepay this Agreement in whole or part at any time without penalty, provided that Buyer shall pay accrued interest on the principal amount prepaid to the date of payment. In the event of a full or partial pre-payment, there will be no changes in the due date or the amounts due hereunder unless Seller agrees to same in writing. A Prepayment will not be a substitute for any regularly scheduled payment. 11. EVENTS OF DEFAULT: If Buyer fails to pay the entire principal and other amounts due to Seller under this Agreement on or before the Maturity Date, or if any and all representations and warranties made by Buyer in this Agreement are later determined to be inaccurate in any respect, or if any action or proceeding is commenced which materially affects the interest of Seller hereunder or Buyer shall become "insolvent" as that term is defined under the Federal Bankruptcy Code or Buyer shall cause to be filed a Petition in Bankruptcy to declare Buyer a bankrupt or a Petition in involuntary Bankruptcy is filed against Buyer before any Bankruptcy Court, or if a beneficial interest in Buyer is sold or transferred where Buyer is not a natural person, or if any default is made in any payment on the date on which it shall fall due, or Buyer 5 fails to operate the Business on the Premises to at least the standards now maintained by Seller for the Business on the Premises, or Buyer fails to observe and perform each and every obligation of Buyer under the Lease at such time that such observance or performance is due, or Buyer fails to observe or perform each and every obligation of Buyer set forth in this Agreement at such time that such observance of performance is due, then Seller, at Seller's option, may: (a) without declaring the unpaid principal balance to be due, collect all installments of principal or interest, or both, and all other sums due under this Agreement from time to time, by any action provided in this Agreement or provided at law or in equity; (b) declare immediately due and payable the entire unpaid balance of principal together with interest accrued thereon as set forth above, together with all other sums due by Buyer under this Agreement, all cost of suit and other expenses in connection therewith, and reasonable attorneys' fees; (c) terminate this agreement and immediately re-enter the Premises and retake possession of the Premises and the Purchased Assets and/or assume the operation of the Business on the Premises whereupon Buyer shall have no further rights under this Agreement, the Lease or the Assumption Agreement; (d) exercise any other right or remedy as may be provided in this Agreement or provided at law or in equity. Payment of all or any part of such amounts may be recovered at any time or from time to time by any one or more of the foregoing remedies, 12. PAYMENT OF COSTS AND ATTORNEY'S FEES: Buyer shall be liable, and 6 shall reimburse Seiler ON DENIAND for all reasonable attorney's fees and expenses incurred by Seller in the event that Seller engages an attorney to represent Seller in connection with (1 any alleged default by Buyer under this Agreement or any other agreement issued in connection with or arising out of this Agreement; (?) the enforcement of any of the Seller's rights and remedies under this Agreement or any other agreement issued in connection with or arising out of this Agreement; (3) any potential and/or actual Bankruptcy or other insolvency proceedings commenced by or against Buyer; and/or (4) anypotential and/or actual litigation arising out of or related to any of the foregoing. 13. POST DEFAULT INTEREST: The greater of the legal rate of interest or the rate of interest set forth in this Agreement shall continue to accrue on and after any default of Buyer hereunder and shall continue to accrue on and after the date of entry of judgment against Buyer. 14. REMEDIES CUMULATIVE AND SUCCESSIVE: The remedies of Seller as provided in this Agreement and the warrants contained therein shall be cumulative and concurrent, and may be pursued single, successively or together at the sole discretion of Seller, and may be exercised as often as occasion therefore shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 15. WAIVERS: Buyer hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Seller under the terms of this Agreement, as well as all benefit that might accrue to Buyer by virtue of any present or future laws, exempting any property, real or personal of Buyer, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Buyer agrees that any real estate and/or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by Seller. 16. TIME OF THE ESSENCE: Time is considered to be of the essence in all respects with regards to Buyer's performance of Buyer's obligations set forth in this Agreement, or any other agreement issued in connection with or arising out of this Agreement. 17. INSPECTION: Buyer shall: a. from time to time and at all reasonable times, allow Seller, by or through any of its officers, agents, attorneys, or accountants, to examine or inspect the Premises and any and all of the Equipment and Leasehold Improvements and Buyer's operation of the Business on the Premises. Buyer shall do, obtain, make, execute and deliver all such additional and further acts, things, deeds, assurances and instruments as Seller may require to vest in and assure to Seller its rights hereunder and in or to any and all of the Equipment and Leasehold Improvements, and the proceeds thereof; b. keep, at Buyer's expense, the Equipment and Leasehold Improvements in good order and repair at all times and immediately notify Seller of any event causing a material loss or decline in value of the Equipment or Leasehold Improvements whether or not covered by insurance and the amount of such loss or depreciation; c. only use or permit the Premises, Equipment and Leasehold Improvements to be used in accordance with all applicable federal, state, county and municipal Laws and regulations; d. at Buyer's expense, have and maintain insurance at all times with respect to all of the Equipment and Leasehold Improvements against risk of fire (including so-called extended coverage), theft, sprinkler leakage, and other risks (including risk of flood if any of the above is maintained at a location in a flood hazard zone) as Seller may require, in such form, in such amount, for such period and written by such companies as may be satisfactory to Seller in Seller's sole discretion. Such policies shall provide that the policy cannot be altered or cancelled without at least thirty (30) days prior written notice to Seller and shall insure Seller not withstanding the act or neglect of Buyer. Upon Seller's demand, Buyer shall provide Seller with original policies of insurance or such other evidence of insurance as Seller may require. In the event of failure to provide insurance as herein provided, Seller may, at its option, obtain such insurance and Buyer shall pay the cost of same to Seller, on demand. Proceeds of insurance may be applied by Seller to reduce the amounts due to Seller under this Agreement or to repair or replace the Equipment or Leasehold Improvements, all in Seller's sole and absolute discretion. 1S. CONFIDENTLALITY OF RECIPES: Seller acknowledges and agrees that the Recipes constitute trade secrets of Seller, and Buyer, in consideration of Seller's agreements set forth in this agreement and otherwise intending to be legally bound, shall keep the recipes confidential at all times and shall not provide or make known to any other persons the Recipes except to such employees of Buyer who have executed confidentiality agreements with Buyer in form. and content acceptable to, Seller and who are necessary for the preparation of rood in connection with the Business on the Premises. Buyer shall not use or cause to be used the Recipes in connection with the preparation of food at any location other than the Premises and then only for the preparation of food to be served on the Premises or in connection with delivery of food prepared on the Premises to non-residential customers. Seller agrees that in the event of a breach or a threatened breach by the Buyer or Buyer's employees or agents of the provisions of this paragraph, Seller shall be entitled to an injunction restraining Seller or such Seller's employees or agents from disclosing, in whole or in part, the Recipes. Anything to the contrary set forth in this Agreement not withstanding, Buyer shall, at Buyer's expense, affirmatively enforce the confidentiality agreements against its employees and agents. In the event Buyer fails to enforce the said confidentiality agreements against its employees or agents, Seller may, in addition to any other remedies reserved to Seller under this Agreement and without waiving Buyer's default of the terms and condition of this Agreement as they relate to Buyer's failure to so enforce the confidentiality agreements or otherwise, take any and all action necessary to enforce the confidentiality agreements against Buyer's employees or agents. In such event, Buyer shall indemnify and save harmless Seller of and from any and all costs and expense incurred by Seller in connection with such enforcement including, without limitation, Seller's reasonable attorney's fees and shall pay to Seller any and all such costs and expenses immediately upon Seller's demand. In addition, nothing shall prohibit Seller from pursuing any other remedies available to Seller for such breach or threatened breach, including the recovery of damages from Buyer or Buyer's employees or agents. Buyer's agreements set forth in this paragraph shall survive and continue to be. enforceable by Seller even after payment of all amounts due to Seller under this Agreement or earlier termination of this Agreement for any reason. 19. NON-COMPETITION OF SELLER: In exchange for Buyer's agreements and payments set forth herein and in full consideration thereof, Seller agrees not to open or operate as a principal or equity owner any restaurant within a three (3) mile radius of the Premises until the earlier of Buyer's payment of all amounts due to Seller under this Agreement or termination of this Agreement for any reason. Anything to the contrary set forth in this paragraph or Agreement not withstanding, nothing herein shall prohibit Seller from the ownership or operation of the restaurant situate at 598 West High Street, Carlisle, PA 17013 known as Ivliseno Pizza II Ristorante ("Miseno Pizza II"). 10 20. NO RESIDENTIAL DELIVER": Buyer shall not engage in the delivery of pizza or other prepared food to residences until all amounts have been paid to Seller under this Agreement. 21. CONIPLL-iNCE WITH LAW: Buyer, at Buyer's expense, shall at all times throughout the term of this Agreement, maintain any and all licenses, if any, required by any state, federal or local governmental agency necessary to operate the Business on the Premises. Buyer shall also be responsible and pay timely any and all taxes fees and --other charges due to the Commonwealth, any political subdivision and the United States in connection with the operation of the Business on the Premises. 22. HOURS OF OPERATION: Buyer shall keep the Business open to the public at least Monday through Thursday and Sunday every week from the hours of 10:00 A.M. to 11:00 P.M. and 10:00 A.M. to 12:00 midnight on Friday and Saturday every week until all amounts due to Seller under this agreement have been paid in full. 23. BUYER'S USE OF NAME: Buyer shall use the name "Miseno's Pizza" for the Business at all times during the term of this Agreement unless otherwise agreed by Buyer and Seller in writing or unless it is later determined that the name "Miseno's Pizza" is not available to Buyer or Seller for use for any reason. Upon payment of the full Purchase Price and any and all other amounts due to Seller under this Agreement, Buyer shall have a license to use the name "Miseno's Pizza" for the Business on the Premises so long as Buyer is engaged in the restaurant business on the Premises. Buyer shall not assign or transfer the right to use the name "itiliseno's Pizza" to any other party without Seller's prior written consent, which consent may be withheld for any reason whatsoever without regard to reasonableness. Anything to the contrary set forth in this Agreement not withstanding, nothing herein shall be construed as a warranty or representation on the part of Seller of the availability of the name ` Iviiseno's Pizza" and Buyer acknowledges and agrees that Seller has never filed a fictitious name or taken any steps to assure that the said name is available for use and that Buyer shall not have any recourse against Seller for breach of this Agreement or for any damages or expense which Buyer may suffer in the event that it is later determined that the said name is, in fact, unavailable or in the event a third party claims an interest in the name, "rlyliseno's Pizza." Seller is free but under no obligation to file a fictitious name for ` Miseno's Pizza" and to take any other steps to secure rights to the name "Miseno's Pizza" at any time or from time to time in the future. The agreements of Buyer and Seller set forth in this paragraph shall survive and continue in full force and effect even after payment of all amounts due to Seller under this Agreement. 24. SELLER'S PAYMENT OF TAlYES. Except for sales tax imposed by the Commonwealth of Pennsylvania for the transfer of the Purchased Assets which shall be paid by Buyer, Seller shall be responsible for the payment of all federal, state and local taxes which relate to the transfer of the Purchased Assets hereunder, and which are attributable to time periods up to and including April 19, 2005, after which, any and all such taxes shall be the responsibility of and paid by Buyer. 25. BUYER'S LNBETHNITY. Buyer hereby indemnifies, defends and holds Seller harmless from and against all claims, liabilities, losses, costs, damages,and expenses, (including attorneys' fees), asserted against Seller which arise in any manner out of Buyer's operation of the Business on the Premises after April 19, 2005 and including, without limitation, sales taxes imposed on the sale of the Purchased Assets and in connection with or in any manner arising out of Buyer's failure to observe or perform each and every obligation under the Lease at such time that such observance or performance is due. The indemnification set forth in this paragraph shall survive and continue in full force and effect even after payment of all amounts due to Seller under this Agreement for so Iona as Seller continues to be obligated as a Tenant under the Lease as amended. I? 26. EXECUTION OF OTHER DOCUMENTS. Buyer and Seller shall execute from time to time any and all further documents, instruments or agreements and do all other things and deliver all items, which may be reasonably necessary to effectuate and carry out any and all of the provisions of this Agreement and the transactions provided for herein. 27. NOTICES. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, postage prepaid, by registered or certified mail, return receipt requested, to the addresses set forth below, or to such other address as any party hereto may properly designate in writing received by the other party: Seller: Vito Iannuzzi 552 Crossroad School Road Carlisle, PA 17013 Buyer: Strato Marco Della Ragione 1225 Ritner Highway Carlisle, PA 17013 28. MISCELLAILEOVS a. All of the terms of this Agreement shall be binding upon and inure to the benefit of, and shall be enforceable by the heirs, executors, administrators, successors, legal representatives and assigns of Buyer and Seller. b. This Agreement may not be revised, modified or waived except in writing signed by all the parties hereto. C. There are no oral agreements by and among the parties hereto. This Agreement constitutes the complete agreement of the parties respecting the subject mater hereof. 13 d. This Agreement has been negotiated and executed in Pennsylvania and shall be governed by the substantive law applicable to contracts made and to be performed in Pennsylvania. e. If any portion of this Agreement is adjudged invalid, unenforceable or void, the remainder shall remain in full force and effect. f. No failure of Buyer or Seller to exercise and no delay by Buyer or Seller in exercising any right or remedy hereunder shall operate as a waiver thereof. A waiver 'on one occasion shall not be construed as a waiver or as a bar to any right or remedy on any future occasion for that breach or default or any subsequent breach or default. g. Any headings preceding the text of the paragraphs hereof are inserted solely for the convenience of reference and shall not constitute a part of the agreement, nor shall they affect its meanings, construction or effect. h. This Agreement may be executed in counterpart, copies each of which shall be deemed an original, and all of which when taken together, shall be deemed a fully executed original. 1. The parties represent and warrant that there are no brokers or sales agents involved in this transaction. Each party indemnifies the other party from any additional claims made as a result of the others breach of this representation and warranty. I. Buyer shall not assign Buyer's rights or obligations under this Agreement without the prior written consent of Seller which consent may be withheld by Seller for any reason whatsoever and without regards to the reasonableness thereof. k. BUYER AND SELLER HEREBY WAIVE THE RIGHT TO A TRIAL BY" JURY IN CONNECTION WITH ANY LITIGATION WHICH MAY ARISE BETWEEN THE 14 PARTIES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT ISSUED IN CONNECTION WITH THIS AGREEMENT. BUYER AGREES TO THE JURISDICTION OF THE COURT OF CONINION PLEAS FOR CUilvIBERLAND COUNTY, PENNSYLVANIA AND THE BANKRUPTCY" COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA AS THE COURTS OF PROPER JURISDICAITON WITH REGARDS TO ANY LEGAL MATTERS ARISING OUT OF THIS AGREEMENT AND ANY AGREEMENT ISSUED N CONNECTION WITH THIS AGREEMENT. 29. NVARRANT OF ATTORNEY TO CONFESS JUDGIMENT. (A) BUYER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, WITH OR WITHOUT DEFAULT, TO APPEAR FOR AND CONFESS JUDGIbIENT AGAINST BUYER FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS AGREEMENT, TOGETHER WITH ANY AND ALL CHARGES, TAXES AND LIENS PAID BY SELLER, HIS SUCCESSORS OR ASSIGNS, AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PURCHASED ASSETS, WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT FOR LIEN PRIORITY PURPOSES, EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS THAN TWO THOUSAND DOLLARS (52,000.00), ADDED FOR ATTORNEYS' COLLECTION FEES, WITH THE ACTUAL AVIGU'NT OF ATTORNEYS' FEES AND COSTS TO BE DETERMINED IN ACCORDANCE WITH THE SECTION OF THIS AGREEMENT ENTITLED 15 "PAYMENT OF COSTS AND ATTORNEYS' FEES." TO THE EXTENT PERMITTED BY LAW. BUYER RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF SELLER SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGNAL AGREEMENT AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT'AGANST BUYER SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS SELLER SHALL FIND IT NECESSARY AND DESIRABLE AND THIS AGREEMENT SHALL BE A SUFFICIENT WARRANT THEREFORE. SELLER MAY CONFESS ONE OR MORE JUDGN£ENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. N THE EVENT ANY JUDGMENT CONFESSED AGAINST BUYER HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR ON BUYER'S BEHALF FOR ANY REASON, SELLER IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST BUYER FOR ANY PART OR ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR HEREIN, IF DOING So WILL CURE ANY ERRORS OR DEFECTS N SUCH PRIOR PROCEEDINGS. (B) UPON DEFAULT BY BUYER OF ANY OF BUYER'S OBLIGATIONS UNDER THIS AGREEMENT, N ADDITION TO THE ABOVE, IT SHALL BE LAWFULL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR 16 BUYER AS WELL AS FOR ALL PERSONS CLAINIING BY, THROUGH OR UNDER BUYER, AND TO SIGN AN AGREEMENT FOR ENTERING E ANY COMPETENT COURT AN AiMICABLE ACTION IN EJECTMENT AGAINST BUYER AND ALL PERSONS CLAIMING BY THROUGH OR UNDER BUYER AND . THEREIN CONFESS JUDGIMENT FOR THE RECOVERY BY SELLER OF POSSESSION OF THE PREMISES, FOR WHICH THIS AGREEMENT SHALL BE SUFFICIENT WARRANT, THEREUPON, IF SELLER SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR NOTICE OR PROCEEDING WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT POSSESSION OF THE PREMISES REMAIN N OR BE RESTORED TO BUYER, SELLER SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS AGREEMENT OR BUYER'S RIGHT OF POSSESSION OF THE PREMISES AS SET FORTH ABOVE, TO BRING ONE OR MORE FURTHER ACTIONS AS SET FORTH N THIS PARAGRAPH TO RECOVER POSSESSION OF THE PREMISES AND CONFESS JUDMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES AS SET FORTH N THIS PARAGRAPH. BUYER ACKNOWLEDGES AND AGREES THAT THIS DOCUMENT CONTAINS PROVISIONS UNDER WHICH SELLER MAY ENTER JJ-DGIlENT BY CONFESSION AGAINST BUYER. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING BEFORE JUDGMENT IS ENTERED ON THE VALIDITY OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST IT BY 17 SELLER HEREU DER, BUYER FREELY, RNO1;Y NGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO SELLER'S ENTERING JUDGMENT AGAINST BUYER BY CONFESSION PURSUANT TO THE TERAIS HEREOF. THE BUYER ALSO ACKNOWLEDGES AND AGREES THAT THIS DOCUNIENT CONTAINS PROVISIONS T-.NDER ' ?THICH SELLER MAY, AFTER ENTRY OF : JUDGMENT AND WITHOUT NOTICE AND A HEART\TG, FORECLOSE UPON, ATTACH, LEVY ON OR OTHERWISE SEIZE PROPERTY OF THE BUYER L`1 FULL OR PARTLkL PAYINIENT OF THE JUDGMENT. BEING FULLY AWARE OF ITS RIGHTS AFTER JUDGMENT IS ENTERED, BUYER HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAItiES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO SELLER'S TAKING SUCH ACTIONS AS MAY BE PERWITTED UNDER APPLICABLE LAW WITHOUT PRIOR NOTICE TO BUYER. 30. Buyer hereby certifies that Buyer's annual income is in excess of S 10,000.00. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date first above mentioned. +'Y 11IN raJ: i / Strato Marco Della Ragione Myer") Rosalba Della Ragio "Buyer") Vito Iannuzzi ("Seller") is AVIV McNees Wallace & Nurick LLC attorneys at law SUSAN V. METCALFE DIRECT DIAL: (717) 237-5412 E-MAIL ADDRESS: SMETCALFE@MWN.COM March 8, 2007 Mr. Vito lannuzzi 552 Crossroad School Road Carlisle, PA 17013 Re: Miseno's Pizza II Dear Mr. lannuzzi: This office represents Strato Marco Della Ragione. On April 19, 2005, you and Mr. Ragione entered into an Installment-Asset Sale Agreement ("Agreement") related to the sale of Miseno's Pizza located at 1225 Ritner Highway, Carlisle, Pennsylvania 17013 (the "Premises"). We have been advised that, although you have been operating a restaurant at 598 West High Street since the time the parties executed the Agreement, you have since substantially changed the nature of that restaurant so that it is now directly competing with Mr. Ragione's restaurant and causing confusion among customers. At the time you entered into the Agreement, your restaurant on West High Street operated as a pub under the trade name "Miseno's Risto Pub." Subsequently, you substantially remodeled the premises, adding bright lighting and a pizza display counter, and changed one or more of your signs to read "Miseno's Pizza." Additionally, you substantially changed your menu and began offering primarily pizza and subs, including carry-out pizza pies and slices. Your actions are causing confusion among customers who think that your restaurant on West High Street and Mr. Ragione's pizza shop are both Part of the same operation. Customers regularly call Mr. Ragione's shop too der pizza, expecting to pick it up at your location, and vice versa. Customers have also presented Mr. Ragione with coupons issued by your restaurant. This has put Mr. Ragione in the position of either honoring a price that he never intended to offer or disappointing potential customers. It is our position that your actions in deliberately altering the appearance, name, and menu offerings of your restaurant to resemble those of Mr. Ragione's restaurant constitute unfair trade practices, and may be a violation of the terms of the non-competition clause of the Agreement. Accordingly, we demand that you immediately cease and desist operating your 598 West High Street restaurant as a pizza shop. If within ten (10) days of the date of this letter, P.O. Box 1166. 100 PINE STREET • HARRISBURG, PA 17108-1166 • TEL: 717,232.8000- FAX: 717 2?7 rann . COLUMBUS, OH • STATE COLLEGE, PA • LANCASTER, PA • HAZLETON, PA • WASHINGTON, DC v I . (s, Mr. Vito lannuzzi March 8, 2007 Page 2 we do not receive written confirmation from you that you will do so, Mr. Ragione will commence legal action to enforce it, including, but not limited to, seeking an injunction. Sincerely, McNEES WALLACE & NURICK LLC Y By Susan V. Metcalfe SVM/mrs Mr. Vito lannuzzi March 8, 2007 Page 3 bc: Strato Della Ragione SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Fi E0-0t FjcL- I THE FROTHQNG [Aj, 2042 APR 20 AM 8: 44 CUMNERLANU COUNTY PENNSYLVANIA Strato Marco Della Ragione (et al.) vs. Vito lannuzzi Case Number 2012-2251 SHERIFF'S RETURN OF SERVICE 04/16/2012 03:01 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on April 16, 2012 at 1501 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Vito lannuzzi, by making known unto Tilde lannuzzi, Daughter of Defendant at 3 Rockwell Court, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $34.45 April 18, 2012 RYAN BURGETT, D SO ANSWERS, RON R ANDERSON, SHERIFF { IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA Vito Iannuzzi Defendant : vs. Strato Marco Della Ragione a/k/a NO.: 2012-2251 7 Strato Marco Della Ragione t/d/b/a CIVIL ACTION - LAW rri Miseno's Pizza a/k/a = X -? Strato Marco Delle Ragione and rn Rosalba Delle Ragione &Wa Rosalba Delle Ragione _ t Plaintiffs DEFENDANT, VITO IANNUZZI'S RESPONSE TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Vito Iannuzzi, by and through his attorneys, Richard P. Mislitsky, Esquire and Karl M. Ledebohm, Esquire, and responds to Plaintiffs' Complaint as follows. INTRODUCTION Plaintiffs' Introduction seeks monetary damages for breach of contract and equitable relief seeking two injunctions: 1. An injunction to stop pizza deliveries which allegedly flows from Defendant's breach of contract, and 2. "...injunctive relief to prevent a certain execution of judgment filed at docket 2012- 1369. t 4 By Order of Court dated April 13, 2012, The Honorable Thomas A. Placey denied Plaintiffs' Emergency Petition for Preliminary Injunction. A copy of the Order of Court is attached hereto and marked Exhibit A. Plaintiffs' Emergency Petition for Preliminary Injunction contains an "Introduction" which demands the same relief requested in the Complaint now at issue. The "Emergency Petition" reads as follows: "...for damages resulting from the actions of breach of contract and equity in the form of an injunction of pizza delivery clause..." The exact same language is also set forth in the Complaint herein at issue. This Honorable Court should also note that Plaintiffs' claim both monetary damages AND equitable relief. It is fundamental that equitable relief cannot be granted where there is an adequate remedy at law. In this case, Plaintiffs' seek monetary damages. In addition to the above, paragraph 28 (K) reads in pertinent part as follows: "Buyer and Seller hereby waive the right to a trial by jury in connection with any litigation which may arise between the parties under this agreement..." Accordingly, Plaintiffs do not have the right to a jury trial as they have demanded. PARTIES 1. Admitted, except to the extent that Plaintiffs claim to be the owners. 2. Admitted. 3. Admitted. JURISDICTION & VENUE 4. Admitted. FACTS 5. Admitted. l a 6. Admitted. By way of further response, Plaintiffs and Defendant entered into an "Installment - Asset Sale Agreement" (see Exhibit A of Plaintiffs' Complaint). Plaintiffs' reference to acting as "a bank for the Plaintiffs" is denied. 7. Admitted. By way of further response, the Agreement speaks for itself. The Court's attention is specifically directed to paragraphs 19 and 20 of the Agreement (Plaintiffs' Complaint, Exhibit A, pp. 10 -11). 8. Admitted. By way of further response, the Court's attention is directed to Plaintiffs' Exhibit A, p. 10, § 19. Plaintiffs' Complaint does not accurately state the paragraph referred to as the "non-competition clause". It is respectfully submitted that important language is omitted from paragraph 8, § 19 of Plaintiffs' Complaint, in pertinent part reads as follows: "...anything to the contrary set forth in this paragraph or Agreement notwithstanding, nothing herein shall prohibit Seller from the ownership or operation of the (restaurant) situate at 598 West High Street, Carlisle, PA 17013, known as Miseno Pizza II Ristorante ("Miseno Pizza II") (emphasis added). By way of further response, Defendant did not open or operate a restaurant in violation of §19. Defendant owns and operates the restaurant specifically excluded from the Agreement. 9. Denied. Defendant incorporates by reference thereto §19 of the Agreement as quoted in paragraph 8 hereof. By way of further response, the establishment at 598 West High Street was never a "pub" as averred in paragraph 9 of Plaintiffs' Complaint. 10. Denied. It is specifically denied that Defendant began "selling pizzas at a deeply discounted price to that of the Plaintiffs." Defendant did not "deeply discount" the 1 price of any menu item. Addressing the allegation that "...Defendant began copying the menu of the Plaintiffs...", the Court's attention is directed to §18 of the Agreement (Plaintiffs' Exhibit A, p. 9). Sellers (Defendant herein) allowed Plaintiffs to use seller's recipes, provided the Plaintiffs kept the recipes confidential. The menu and recipes used to make the menu items were, at all times, the "...trade secrets of [the] Seller.", and had always been used by Defendant at his restaurant excluded from the Agreement. 11. Denied. Defendant directs the Court's attention to § 19 of the Agreement (Plaintiffs' Exhibit A, p. 10). Defendant's restaurant is expressly and unambiguously excluded from the Agreement between Plaintiffs and Defendant. By way of further response, it is denied that any renovations were done "...to more closely resemble the pizza shop of the Plaintiffs." The only changes to Defendant's restaurant were changes made by the lessor. Defendant does not own the premises. Changes were made by the lessor, Dickinson College. 12. Admitted. By way of further response, attached hereto are copies of letters from defense counsel to Plaintiffs' counsel, Susan Metcalf, Esquire. The letters are dated March 23, 2007, April 10, 2007, and May 21, 2008. The letters are attached hereto and collectively marked Exhibit B. Said correspondence speaks for itself. 13. Denied. Defendant can neither admit nor deny the averments in paragraph 13. It is believed and therefore averred that Plaintiffs took no action because the Agreement clearly, unequivocally, and definitively contradicted Plaintiffs' claims. By way of further answer, the letter dated March 8, 2007 (referred to in paragraph 12 of Plaintiffs' Complaint and attached to Plaintiffs' Complaint as Exhibit B) was 1 Plaintiffs' attempt to excuse Plaintiffs' non-payment under the Agreement. By way of further answer, the references to pleas from Plaintiffs' father are, factually, the exact opposite. Defendant, at various times, has taken no action against the Plaintiffs, at the request of Plaintiffs' father (See Exhibit A hereof, letter dated May 21, 2008, p. 2). 14. The averments in paragraph 14 are vague and cannot be specifically address without facts explaining the language "...began expanding his business", and Plaintiffs' reference to "...effectively taking all the business of the Plaintiffs". By way of further response, Plaintiffs, or one of them, has opened a restaurant named Pomodoros Italian Restaurant, 205 Pauline Drive, York, Pennsylvania. In addition, Defendant believes and therefore avers that Plaintiffs, or one of them has also opened a restaurant in Mechanicsburg, Pennsylvania. By way of further response, Defendant's restaurant at 598 West High Street was specifically excluded from the Agreement. 15. Denied. The Agreement is exactly the opposite of Plaintiffs' contention. The Agreement prevents the buyers (Plaintiffs herein) from residential delivery. The Court's attention is directed to p. 11, §20 of the Agreement. It reads: "NO RESIDENTIAL DELIVERY: Buyer shall not engage in the delivery of pizza or other prepared food to residences until all amounts have been paid to Seller under this Agreement." (emphasis added). 16. Denied. The Court's attention is again directed to p. 10, §19 of the Agreement. Not only is Plaintiffs' restaurant at 598 West High Street expressly excluded from §19, but the name of the restaurant itself, as indicated in the contract, contradicts Plaintiffs' claims. "Miseno Pizza II Ristorante" has always sold pizza. Defendant 4 4 admits that since April 19, 2005, Plaintiffs have failed to pay as set forth in the Agreement. By way of further answer, payments to Defendant were consistently late. After Defendant demanded payment, Plaintiffs would continue payments as set forth in the Agreement, for a few months, then again failed to make payments to the Defendant. The same pattern continued until monthly payments stopped in August, 2010. Thereafter, only one partial payment was made to Defendant. 17. Denied. Defendant incorporates prior responses 4 - 16 as those set forth herein. Defendant's restaurant was specifically excluded from the Agreement. The "non- competition clause", referred to by Plaintiffs, applies to the Plaintiffs, not the Defendant, as alleged by Plaintiffs. 18. Denied. The restaurant at 598 West High Street was specifically excluded from the "non-competition clause" (see Agreement §19). Said restaurant was never "... a bar, or pub..." It should be noted that Plaintiffs admit, in paragraph 18, that said restaurant "...also served pizza..." Defendant avers that Plaintiffs' admission remains true today. The restaurant has twenty (20) tablesibooths and serves a variety of Italian food specialties. 19. Admitted, in part, and denied, in part. Given Plaintiffs' admissions and the clear terms of the Agreement, it is denied that parole evidence is necessary. Both Plaintiffs and Defendant admit that fifty thousand dollars ($50,000.00) was paid as part of a total price of two hundred seventy thousand dollars ($270,000.00). By way of further response, Defendant avers that the Agreement speaks for itself, and Defendant incorporates his responses previously set forth herein. 20. Defendant cannot respond to the statements in paragraph 20, other than to note that Plaintiffs themselves admit relying on the "written portions" of the Agreement. 21. Denied, as stated. Plaintiff Strato Della Ragione, and his father, demanded that Defendant buy back the business at issue for the price of three hundred thousand dollars ($300,000.00). Defendant refused. No further discussion took place. The remaining averments have been previously denied herein. Defendant incorporates paragraphs 1 - 20 herein. 22. Denied, as stated. The "Ejectment Action" was filed on February 29, 2012, pursuant to Rule 2971, and docketed as 2012-1358. The Notice of Judgment was filed on March 1, 2012, pursuant to Rule 2951, and docketed as 2012-1369. 23. Denied. Defendant incorporates his response in paragraph 21. By way of further answer, Plaintiffs contend that Defendant violated the Agreement as early as 2006. It is affirmatively averred that, contrary to Plaintiffs' allegations, if Defendant had truly violated the terms of the Agreement, Plaintiffs had over six years to assert "...their rights under the contract in a timely fashion...". 24. The averments in paragraph 24 are conclusions of law, and no response is required. COUNT 1 Breach of Contract 25. Defendant incorporates by references paragraphs 1 - 24 herein. 26. Admitted. 27. Denied. Defendant did not breach the Agreement. The Agreement, attached to Plaintiffs' Complaint as Exhibit A speaks for itself. Defendant incorporates herein paragraphs 1 - 24 herein. The entire basis of Plaintiffs' allegations is specifically and unequivocally contradicted in that Defendant's restaurant at 598 West High Street is excluded from the agreement, and Plaintiffs, not Defendant, are prohibited from residential pizza delivery. 28. Admitted. It is admitted that Plaintiffs did not fulfill the payment obligations. 29. Denied. Defendant incorporates herein paragraphs 15, 16, and 18 hereof. The Court's attention is again directed to § 19 and §20 of the Agreement. 30. Defendant incorporates by references paragraphs 1 - 24 herein. 31. Denied. Plaintiffs have suffered no damages whatsoever. Plaintiffs breached the Agreement by not making payments to Defendant as admitted in paragraph 28 of Plaintiffs' Complaint. Contrary to Plaintiffs' allegations, Defendant is entitled to payment in the amount of eighty thousand, two hundred twelve dollars and 34 cents ($80, 212.34), plus attorneys' fees and costs, as well as interest at six percent (6%) from March 13, 2012. WHEREFORE, Defendant prays this Honorable Court to dismiss Count 1 of Plaintiffs' Complaint and to dismiss Plaintiffs' claims in their entirety. COUNT II Injunction in Equity 32. Denied. For the reasons previously set forth herein, Defendant did not violate any terms of the contract. The Agreement prevents the Bum from residential pizza delivery. (Plaintiffs Exhibit A, §20, p.11). In addition, Plaintiffs' Exhibit A, §19, p.10 specifically excludes Defendant's restaurant from the Agreement. 33. Defendant can neither admit nor deny the statements in paragraph 33 of Plaintiffs' Complaint. 34. Defendant can neither admit nor deny the statements in paragraph 33 of Plaintiffs' Complaint. By way of further response, Defendant incorporates, by reference, the responses set forth in paragraphs 1-33 hereof. 35. Denied. Defendant did not breach any terms contained in the Agreement. Defendant incorporates, by reference, the responses set forth in paragraphs 1-33 hereof. 36. Defendant can neither admit nor deny the statements in paragraph 33 of Plaintiffs' Complaint. 37. Denied. Defendant did not violate the Agreement. By way of further response, Defendant incorporates, by reference, the responses set forth in paragraphs 1-36 hereof. 38. Denied. Defendant incorporates, by reference, the responses set forth in paragraphs 1-37 hereof. Defendant did not breach the Agreement. Plaintiffs have suffered no damages. Contrary to Plaintiffs' allegations, Defendant is entitled to payment in the amount of eighty thousand, two hundred twelve dollars and 34 cents ($80, 212.34), plus attorneys' fees and costs, as well as interest at six percent (6%) from March 13, 2012. 39. Admitted that Plaintiffs requested injunctive relief. By Order of Court dated April 13, 2012, Plaintiffs' request was denied by the Honorable Thomas A. Placey. The Order of Court is attached hereto as Exhibit A. WHEREFORE, Defendant demands judgment in his favor and to dismiss all counts in Plaintiff's Complaint. COUNT III Injunction in Equity / Stay 40. Admitted. 41. Admitted, except as to the statement that Defendant breached the contract. By way of further answer, by Order of Court dated March 23, 2012, The Honorable Thomas A. Placey, after taking testimony from the Plaintiffs herein, upheld the validity of the Confession of Judgment. A copy of the Order is attached hereto and marked Exhibit C. By way of further response, by Order of Court dated April 13, 2012, the Honorable Thomas A. Placey denied Plaintiffs' Motion for an Emergency Preliminary Injunction. A copy of said Order has previously been identified as Exhibit A. Given the aforesaid Orders of Court, Count III of Plaintiffs' Complaint is a collateral attack attempting to circumvent the Orders of Judge Placey. 42. Defendant incorporates the response set forth in paragraph 41hereof. It is denied that Plaintiffs will suffer any harm. Plaintiffs ceased paying Defendant in violation of the Agreement. 43. Denied. Defendant incorporates, by reference, paragraphs 1 - 41 hereof. Defendant also incorporates §19 and §20 of the Agreement, attached as Exhibit A to Plaintiffs' Complaint. By way of further response, Defendant did not breach the Agreement, and Defendant's restaurant at 598 West High Street is specifically excluded from the Agreement. 44. Denied. Defendant incorporates the response set forth in paragraph 41 hereof. By way of further response, Defendant denies the averments in paragraph 44 and further, specifically denies that Plaintiffs purchased the business assets. To the contrary, Plaintiffs stopped making payments to the Defendant, and at this point, owes the Defendant eighty thousand, two hundred twelve dollars and 34 cents ($80, 212.34), plus attorney fees, litigation costs, and interest at six percent (6%) from March 31, 2012. 45. Denied. Defendant incorporates the response set forth in paragraph 41 hereof. Plaintiffs are clearly attempting to circumvent the Orders of Court issued by Judge Placey which upheld the validity of the Confession of Judgment. 46. Denied. Defendant incorporates the response set forth in paragraph 41 hereof. Plaintiffs are clearly attempting to circumvent the Orders of Court issued by Judge Placey. As such, Plaintiffs' claims are prohibited as an improper collateral attack. 47. Denied. Defendant incorporates the response set forth in paragraph 1 - 46 hereof. Again, Plaintiffs are clearly attempting to circumvent the Orders of Court issued by Judge Placey. 48. Denied. Defendant incorporates the response set forth in paragraph 1 - 47 hereof. Plaintiffs are clearly attempting to circumvent the Orders of Court issued by Judge Placey. 49. Denied. Defendant incorporates the response set forth in paragraph 1 - 48 hereof. Defendant did not violate the contract. 50. Denied. Defendant responds stating that Plaintiffs request for injunctive relief was denied by order of Court dated April 13, 2012. WHEREFORE, Defendant prays this Honorable Court to dismiss Plaintiffs' claims and respectfully requests that judgment be entered in favor of the Defendant on all Counts. Date: May 16, 2012 r Richard P. Mislitsky, Esquire One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 717.241.6363 /s/ Karl M. Ledebohm Karl M. Ledebohm, Esquire PO Box 173 New Cumberland, PA 17070-0173 717.938.6929 VERIFICATION I, Vito Iannuzzi, the Defendant in this matter, have read the foregoing Response to Plaintiffs' Complaint. I verify that my averments in this Response to Plaintiffs' Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. Daze: /CZ Vito Iannuzzi EXHIBIT A i STRATO DELLA RAGIONE and`IOdL?'s DELLA RAGIONE d/b/a MESS1Nl9EK)_1' AD 1 PIZZA, "FP?`z S Y ?WVta P446 laintiffs V. VITO IANNUZZI, Defendant IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT No. 2012-1369 IN RE: EMERGENCY PETITION FOR PRELIMINARY INJUNCTION ORDER OF COURT -Tor AND NOW, this i? day of April, 2012, upon consideration of Plaintiffs' Emergency Petition for Preliminary Injunction, and it appearing to the court that Plaintiffs seek: (1) to enjoin Defendant from delivering food to residential customers, in reliance upon Paragraph 20 of the installment-Asset Agreement, which is attached to their Petition and made part of the record thereby; and (2) to stay the Writ of Execution at docket number 2012-1369 Civil Term, the court is unable to find that Plaintiffs have satisfied their burden in establishing entitlement to the requested relief. Accordingly, Plaintiffs' Emergency Petition for Preliminary Injunction is DENIED. Thomas A/Pltcey C.P.J. Distribution Hilary Vesell, Esq. Kope & Associates, LLC 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 For Plaintiffs Richard P. Mislitsky, Esq. Karl M. Ledebom, Esq. One West High Street P.O. Box 1290 Carlisle, PA 17013 For Defendant EXHIBIT B Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 *Richard P. Mislitsky Telephene (747) 241 696; F-wi (74W) 249 707; Offices in: Carlisle Chambersburg York March 23, 2007 Susan V. Metcalfe, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 RE: My Client: Vito Iannuzzi Your Client: Strato Marco Della Ragione Dear Ms. Metcalfe: Vito Iannuzzi has asked me to respond to your letter dated March 8, 2007 concerning the operation of his business at 598 West High Street, Carlisle, Pennsylvania known as Miseno Pizza II (the "Restaurant"). Frankly, my client is baffled by the accusations which you raise on behalf of Mr. Ragione in your letter. Specifically, the clear, unambiguous language of the Installment - Asset Sale Agreement signed by the parties and dated April 19, 2005 (the "Agreement") specifically excepts and carves out from any language to the contrary in the Agreement including, without limitation, the non-competition language in paragraph 19, Mr. Iannuzzi's continued operation of the Restaurant. Therefore, if Mr. Iannuzzi desired to install a "pizza counter" in the Restaurant, he is clearly not prohibited from doing so under the terms of the Agreement. However, contrary to Mr. Ragione's assertion, my client has installed no such "pizza counter" in the Restaurant. Apparently in the past few months Mr. Ragione objected as resembling a "pizza counter" to a look through portal between the kitchen and the seating area of the Restaurant which Mr. Iannuzzi installed in an effort to better control the activities of his employees in the Restaurant. Although I advised Mr. Iannuzzi that he was within his rights to install the look through portal, Mr. Iannuzzi has since voluntarily closed the portal in an effort to preserve relations with Mr. Ragione. For the above reasons, my client is unaware as to what Mr. Ragione is now referring to as a "pizza counter." Mr. Ragione's objection to alleged lighting, name and menu changes is similarly unintelligible and, in any event, irrelevant under the Agreement. Specifically, the name and menu have not changed in any significant manner since the date of the Agreement and no relevant prohibition appears in the Agreement. *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency Letter to Susan V. Metcalfe, Esquire March 23, 2007 Page 2 of 2 To the contrary, my client asserts that Mr. Ragione has changed his menu in violation of the understanding of the parties. Additionally, my client asserts that Mr. Ragione is in violation of Paragraph 20 of the Agreement. My client also has the right under Paragraph 17 of the Agreement to inspect Mr. Ragione's business operation. For the above reasons, any injunction brought by Mr. Ragione would not be grounded in law or fact. Therefore, any injunction action brought by Mr. Ragione can only be viewed as a deliberate attempt to misuse the legal system to obtain an unfair trade advantage over my client which will not be tolerated.. You should be aware that Mr. Ragione has repeatedly failed to make the installment payments due to my client under the Agreement in a timely manner. Although Mr. Iannuzzi has worked with Mr. Ragione in the past as to delinquent installments, this letter constitutes official notice to Mr. Ragione that all future installments due under the Agreement must be delivered to Mr. Iannuzzi on or before the first of each month without set-off, counterclaim or deduction of any kind, in strict conformity with the terms of the Agreement. Any payment not so delivered will constitute a default of Mr. Ragione's obligations under the Agreement. My client requires that any further communication by Mr. Ragione be directed to my office. Additionally, it is in the best interest of the parties that Mr. Ragione mail all future payments to my client and to-refrain from delivering same in person. However, each installment payment must be received by my client on or before the 1St of each month as required under the Agreement. The above said, in the spirit_ of continued co-oberation? my client may agree in writing to permit Mr. Ragione to change the name of his restaurant-in order to_avoid_n_future confusion. Sincerely, Richard P. Mislitsky RPM/dls cc: Vito Iannuzzi Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 I *Richard P. Mislitsky elephea ) 241 6363 FwE (W17) 24n-2073 Offices in: Carlisle Chambersburg York April 10, 2007 Susan V. Metcalfe, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 RE: My Client: Vito Iannuzzi Your Client: Strato Marco Della Ragione Dear Ms. Metcalfe: I have now received two angry calls from my clients. Your client has once again not made payments due under the Agreement. This is inexcusable. I am sure that you will agree, your client's actions are not consistent with an intention to resolve problems. It is only strengthening my clients' resolve to take the matter to Court on a breech of contract. I am respectfully asking you to relate this to your client and to also relate to him the attorney's fees and costs he will incur if he does not abide by the Agreement. The Iannuzzi's expect payment immediately. I would also like to point out to you that we have not received a response to my prior correspondence. I am again sending it as a courtesy. If your client refuses to pay the amounts due immediately, will you give me the courtesy of telling me this and why. Sincerely, Richard P. Mislitsky RPM/dls cc: Vito Iannuzzi *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7073 Daniel J. Menniti, Esquire' May 21, 2008 Susan V. Metcalfe, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 RE: Miseno's Pizza II Dear Ms. Metcalfe: Karl M. Ledebohm, Esquire2 Mark W. Allshouse, Esquire3 I hope sending you this letter is appropriate. I do not know if you represent Mr. Ragione. Because of this uncertainty, I am also sending this letter directly to Mr. Ragione. Please let me know if you represent him. My clients have called me nearly every month telling me that the payments are being made late. The agreement is clear that they need to be made on the first of the month. Your last letter, albeit several months ago, said that Mr. Ragione would thereafter send payment by certified mail. This was going to be done since he denied making late payments. This never happened. If your suggestion had been followed, there would be no dispute. Frankly, Mr. Ragione's failure to send payments by certified mail should convince you that the payments are indeed late. Under paragraph 11, EVENTS OF DEFAULT, it is clear that late payment is in fact a default. Paragraph 11 makes several references to late payments. It states "if any default is made in any payment on the date on which it shall fall due." The agreement further states in paragraph 11 that a default occurs if "Buyer fails to observe and perform each and every obligation of Buyer under the Lease at such time that such observance or performance is due." Paragraph 11 further states that in the event of a default, the seller has several options. The seller can, under subsection (b) declare that all remaining payments be made immediately. Under subsection (c), the seller can enter the premises and retake possession. In which case, Mr. Ragione has no rights under the agreement. The agreement also provides that Mr. Ragione would be responsible for all my client's costs and "reasonable attorney's fees." More specifically, paragraph 12, PAYMENT OF 1 Of Counsel - Practices independently as Daniel J. Menniti, Esquire z Of Counsel - Practices independently as Karl M. Ledebohm, Esquire 3 Of Counsel - Practices independently as Christian Lawyers Solutions, LLC COSTS AND ATTORNEY'S FEES, clearly indicates that Mr. Ragione will pay my client's attorney's fees. I am sure that you have made Mr. Ragione aware of the consequences when payments are not made on time. If you have not, could you please explain this to him, assuming that you still represent Mr. Ragione? In addition, please explain to him paragraph 29. That is the section on Confession of Judgment. Does he realize that my clients, by simply filing a document in the courthouse, can have a judgment entered against him? I am sure that neither you nor I would make late payments when a Confession of Judgment can be entered. If Mr. Ragione makes even one late payment from now on, my clients will take legal action. Susan, I want you to realize that my clients instructed me to do this letter on February 11, 2008. That is three months ago. It was never sent at the instruction of my clients. My client's found out that Mr. Ragione's father was ill. It was only their compassion that prevented this letter from being sent in February. In return, my clients have just called me telling me that Mr. Ragione is now 20 days late on his May payment. In ten days, he will owe $6,000. Let me repeat. I am sorry to trouble you if you no longer represent Mr. Ragione. If you do, please notify me immediately. Sincerely, Richard P. Mislitsky RPM/j cm cc: Vito and Suzanne Iannuzzi Strato Delle Ragione Karl Ledebohm, Esquire 4 s ?n+ EXHIBIT C i f'407yGN :., i r. 2012 MAR 231 Pry 2= VITO IANNUZZI, CUMBERLAM Plaintiff PENNS YLI V. STRATO MARCO DELLA RAGIONE a/k/a STRATO MARCO DELLA RAGIONE t/d/b/a MESINO'S PIZZA a/k/a STRATO MARCO DELLE RAGIONE and ROSALBA DELLE RAGIONE a/k/a ROSALBA DELLE RAGION E Defendants couti-ry Aj f""*4 ,b "f2t IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT No. 2012-1359 IN RE. PETITION TO STRIKE JUDGMENT REQUEST FOR PROMPT HEARING ORDER OF !;QURT AND NOW, this 23'd day of March, 2012, upon consideration of Defendants' Petition to Strike Judgment and Request for Prompt Hearing, and following a hearing on Defendants' Petition to Strike, at which Plaintiff was represented by counsel in the persons of Richard P. Mislitsky, Esq. and Karl M Ledebom, Esq., and Defendants were represented by counsel in the person of Hilary Vesell, Esq., the court finds that Plaintiff has shown, by a preponderance of the evidence, that Defendants voluntarily, intelligently, and knowingly waived the right to notice and hearing prior to the entry of a confessed judgment. Accordingly, Defendants' Petition to Strike Judgment is DENIED. Pursuant to Pennsylvania Rule of Civil Procedure 29583(c)(1), the stay entered pursuant to Rule 2958.3(d) is automatically terminated. -Richard P. Mislitsky, Esq. Karl M. Ledebom, Esq. One West High Street P.O. Box 1290 Carlisle, PA 17013 For Plaintiff f/Hilary Vesell, Esq. Kope & Associates, LLC 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 For Defendants C0)0; e_5 ka .lest 3/a3/, RIVI L By the Court, ?""----_? Thom A. Placey C.P.J. a_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA Vito Iannuzzi Defendant vs. Strato Marco Della Ragione a/k/a Strato Marco Della Ragione t/d/b/a Miseno's Pizza a/k/a Strato Marco Delle Ragione and Rosalba Delle Ragione a/k/a Rosalba Delle Ragione Plaintiffs NO.: 2012-2251 CIVIL ACTION -, LAW Certificate of Service AND NOW, this 16th day of May, 2012, I, Jean Smith, hereby certify that a true and correct copy of this DEFENDANT'S RESPONSE TO PLAINTIFFS' COMPLAINT was served via first-class US mail addressed as follows: Hilary Vessel, Esquire, Kope and Associates, LLC 395 St. Johns Church Road - Suite 101 Camp Hill, PA 17011 Counsel for Plaintiffs Date: May 16, 2012 ,6. ,?, Jean Smith KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, THE ?:4 Tf'"1110 Ti, 'f Z 12 JUL - 6 PH 3: 4 5 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2012-2251 (Civil Term) V. VITO IANNUZZI, Defendant. JURY TRIAL DEMANDED TO THE HONORABLE JUDGES OF SAID COURT: MOTION TO COMPEL Plaintiffs, Strato Della Ragione and Rosalba Della Ragione, by and through th attorney, Hilary Vesell, Esquire, and the law firm KOPE AND ASSOCIATES, LLC, respectfully request the following: Plaintiffs filed a Complaint against Defendant on April 9, 2012. 2. Plaintiffs mailed Plaintiffs' Request for Admissions to Defendant- Set No. 1 < Plaintiffs Request for Production of Documents Directed to Defendant (Exhibit A) to Defendant on June 1, 2012. 3. Plaintiffs' are requesting bank statements from one (1) year prior to the date of the contract at issue to the present as well as all taxes and bank statements dating fro (1) year before the date of the contract at issue to the present date in order to assess contract damages in violation of the breach of the non-competition of seller clause of tl contract at issue. 5. The main purpose of Plaintiffs' Request for Production of Documents was to discover financial information regarding damages Plaintiffs' sustained in their breach contract action. 6. Additionally, the Plaintiffs are also requesting Plaintiffs' Request for Admission Defendant - Set No. 1 Admission No. 1 answered asking whether it was ever Defendant's intent to keep the Defendant's restaurant (Miseno Pizza li) a pub? 7. Defendant has objected to these questions. 8. Attorney Richard P. Mislitsky represents Defendant Vito lannuzzi 11. Plaintiffs now bring this Motion to Compel Discovery pursuant to Pennsylvania Rules of Civil Procedure 4006 (2) stating that the answer to Plaintiffs' Request for Admissions to Defendant - Set No. 1 Admission No. 1 and Answers to Request for Production of Documents and Things questions No. 1 and No. 2 regarding Defendant'] financial information shall be answered and served within thirty (30) days. 12. Plaintiffs bring this Motion respectfully requesting the Court order Defendant Vitj lannuzzi to provide discovery as requested in Exhibit "A" pursuant to Pennsylvania Rules of Civil Procedure 4006(2) and 4009(a)(1). 14. Without discovery Plaintiffs cannot proceed to attempt to effectively settle this matter. 17. The Pennsylvania Rules of Civil Procedure require that Defendant Vito lann provide Plaintiffs with the requested discovery. WHEREFORE, Plaintiffs respectfully requests that this Court Compel Di Respectfully submitted, KOPE & ASSOCIATES, LL??C By: xatt Hilary Vesell squire /I Attorney for P titioners Dated: tD 1' oZ KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com Attorney for Plaintiffs STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2012-2251 (Civil Term) V. VITO IANNUZZI, Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire, hereby certify that on July 6, 2012, 1 served a copy of the foregoing Motion to Compel Discovery by first class, United States mail to the following: Richard P. Mislitsky One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 KOPE & ASSOCIATES, LLC )n .-, 'M I I . /-\ - A i Hilary Vesell, gquire ID # 308358 '•J Kope & Associates, LLC 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 Shane B. Kope, Esq. ¦ Alyss H. Knisely, Esq. Hilary P. Vesell, Esq. ¦ Damian J DeStefano, Esq. K O P E ASSOCIATES June 1, 2 Richard P. Mislitsky, Esq. One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 In re: Iannuzzi v. Ragione No. 2012-2251 Dear Attorney Mislitsky: Enclosed please find Plaintiffs' Request for Admissions to Defendant and Plaintiffs' Request Productions of Documents Directed to Defendant. Please do not hesitate to contact me, if you have any questions. Thank you for your attention this matter. Sincerely, KOPE & ASSOCIATES, LLC 1 r ,f I , ?. t Hilary Vesell, Esq„, Enclosures cc: Strato Della Ragione (w/o enclosures) file (w/ enclosures) 912 to Smart Repr sentation Main: 395 St. Johns Church Road ¦ Suite 101 ¦ Camp Hill, PA 17011 York: 11 East Market Street ¦ Suite 200 A ¦ Yo k, PA 17401 P 717.761.7573 ¦ F :717.761.7572 ¦ pelaw.com KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 12-2251 (Civil Term) V. VITO IANNUZZI, Defendant. JURY TRIAL DEMANDED PLAINTIFFS' REQUEST FOR ADMISSIONS TO DEFENDANT-SET NO. 1 To: Defendant Vito lannuzzi, by and through counsel Richard P. Mislitsky, Esq. Please take notice that you are hereby required, pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure to serve upon the undersigned within thirty (30) days from service, your response to the admission(s) requested herein: 1. Was it ever your intent to keep your restaurant (Miseno Pizza II) a pub? Admit Deny 2. Do you admit that $50,000 was paid to you as part of the agreement with the Plaintiffs that is not reflected in the Installment-Asset Sale Agreement at issue? Admit Deny 3. Do you admit that you spoke to Plaintiff Strato Della Ragione at the closing in Italian regarding the contract that you were about to sign? Admit Deny DATE HILARY VESELL, ESQUIRE 395 St. Johns;Church Road Camp Hill, PA 17011 Supreme Court ID# 308358 KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, V. VITO IANNUZZI, Defendant. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : NO. 12-2251 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Hilary, Esq., do hereby certify that on this 1st day of June, 2012, 1 served a and correct copy of the foregoing Plaintiffs' Request for Admissions to Defendant First Class Mail, postage prepaid, addressed as follows: Richard P. Mislitsky, Esq. One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 Respectfully Submitted, KOPE & ASSOCIATES, LLC r HILARY VESELL', ESQ. e KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com Attorney for Plaintiffs STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, V. VITO IANNUZZI, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 12-2251 (Civil Term) JURY TRIAL DEMANDED PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT 1. Any and all bank statements from one (1) year before the date of the coi at issue to the present date. 2. All taxes from one (1) year before the date of the contract at issue to the present date. 3. All statements, including but not restricted to those defined by Pa.R.C.P. 4003.5, signed statements, transcripts of recorded statements or interviews of any party person or witness, or their agents or employees, who have any knowledge or informatior of the facts concerning or pertaining to the incident, the subject matter, the claims, the damages, or any other matter involved in or pertaining to this case. ct 4. If not otherwise covered by the above Requests, any and all documents regarding your investigation of the subject matter of the Complaint. 5. Any and all documents which you intend to offer or identify as exhibits al evidence at any depositions or at the trial of this matter. PLEASE TAKE NOTICE that Plaintiffs reserve the right to supplement the Request for Production up to the time of trial. KOPE & ASSOCIATES, LLC Hilary Vesell, Esq. or Date CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire do hereby certify that on this day of Jlune, 2012, 1 served a true and correct copy of the foregoing Plaintiffs Requests for ProdL of Documents Directed to Defendant via hand delivery to: Richard P. Mislitsky, Esq. One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 KOPE & ASSOCIATES, LLC f By: Hilary Vesell,-Esq. I.D. 308358 395 St. Johns Church Road Camp Hill, PA 17011 (717) 761-7573 Attorney for Plaintiffs T lye' P R 0 TI{0N0 1';k 1;_1' KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, 2012 JUL 13 AM 10: 28 CUMBERLAND C 0UNTY PENNSYLVANIA, Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2012-2251 (Civil Term) V. VITO IANNUZZI, Defendant. JURY TRIAL DEMANDED TO THE HONORABLE JUDGES OF SAID COURT: AMENDED MOTION TO COMPEL Plaintiffs, Strato Della Ragione and Rosalba Della Ragione, by and through the attorney, Hilary Vesell, Esquire, and the law firm KOPE AND ASSOCIATES, LLC, respectfully request the following: Plaintiffs filed a Complaint against Defendant on April 9, 2012. 2. Plaintiffs mailed Plaintiffs' Request for Admissions to Defendant- Set No. 1 < Plaintiff's Request for Production of Documents Directed to Defendant (Exhibit A) to Defendant on June 1, 2012. 3. Plaintiffs' are requesting bank statements from one (1) year prior to the date of the contract at issue to the present as well as all taxes and bank statements dating frc (1) year before the date of the contract at issue to the present date in order to assess contract damages in violation of the breach of the non-competition of seller clause of 1 contract at issue. 5. The main purpose of Plaintiffs' Request for Production of Documents was to discover financial information regarding damages Plaintiffs' sustained in their breach contract action. 6. Additionally, the Plaintiffs are also requesting Plaintiffs' Request for Admission Defendant - Set No. 1 Admission No. 1 answered asking whether it was ever Defendant's intent to keep the Defendant's restaurant (Miseno Pizza II) a pub? 7. Defendant has objected to these questions. 8. Attorney Richard P. Mislitsky represents Defendant Vito lannuzzi. 11. Plaintiffs now bring this Amended Motion to Compel Discovery pursuant to Pennsylvania Rules of Civil Procedure 4006 (2) stating that the answer to Plaintiffs' Request for Admissions to Defendant - Set No. 1 Admission No. 1 and Answers to Request for Production of Documents and Things questions No. 1 and No. 2 regarding Defendant's financial information shall be answered and served within thirty (30) days. 12. Plaintiffs bring this Motion respectfully requesting the Court order Defendant \ lannuzzi to provide discovery as requested in Exhibit "A" pursuant to Pennsylvania Rules of Civil Procedure 4006(2) and 4009(a)(1). 14. Without discovery Plaintiffs cannot proceed to attempt to effectively settle this matter. 17. The Pennsylvania Rules of Civil Procedure require that Defendant Vito lannuzzi provide Plaintiffs with the requested discovery. 18. The Defendant's attorney could not be reached regarding whether or not he concurred with this motion. 19. Judge Placey had previously been assigned to hear an equitable matter regarding the facts of this case filed under a different docket. WHEREFORE, Plaintiffs respectfully requests that this Court Compel Discovery, Respectfully submitted, KOPE & ASSOCIATES, LLC By: ^` A/u Hilary Vesel , squire Attorney for titioners Dated: /?a 1 KOPE & ASSOCIATES, HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com LLC Road, Suite 101 Attorney for Plaintiffs STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'S PIZZA, Plaintiffs, V. VITO IANNUZZI, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2012-2251 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire, hereby certify that on July 12, 2012, 1 served a copy of the foregoing Amended Motion to Compel Discovery by first class, United States mail to the following: Richard P. Mislitsky One West High Street - Suite 208 PO Box 1290 Carlisle, PA 17013 KOPE L&ASSOCIATES, LC r Hilary Vesell, squire I D # 308358 Kope & Associates, LLC 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 STRATO DELLA RAGIONE, and ROSALBA DELLA RAGIONE, d/b/a MESSINO'SPIZZA Plaintiffs V. VITO IANNUZZI Defendant CIVIL TERM No. 2012-2251 IN RE: MOTION TO COMPEL AND AMENDED MOTION TO COMPEL RULE TO SHOW CAUSE AND NOW, this 23rd day of July 2012, upon consideration of the Plaintiff's Motion to Compel Discovery, a rule to show cause is issued upon Defendant to show cause, if any, why the relief requested by Plaintiff should not be granted. RULE RETURNABLE within twenty days. A hearing will be scheduled for 30 August 2012 at 3:00 p.m. in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. Distribution List: (Hilary Vesell, Esq. 395 St. John's Church Road Suite 101 Camp Hill, PA 17011 0 1?sr Vx 00" * 4*45N IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT By the Court Thomas A. Placey C.P.J. (-.) `"- L.,,.y y Cn `- -- #: D C--) s, C p C_ CO .? t?3 d Richard P. Mislitsky, Esq. One West High Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO DELLA RAGIONE, and .LBA DELLA RAGIONE, d/b/a iN0' S PIZZA Plaintiffs v. IANNUZZI Defendant e-y No.:12-2251 (Civil Term) ~ ~ +~.~ = ^i -~~ cn -a ~~ ~ ~- ca --+ ~ ~ ~ DEFENDANT'S RESPONSE TO RULE TO SRflVV CAUSE WI1IY THE AMENDED MOTION TO COMPEL SHOULD NOT BE GRANTED AND NOW comes the Defendant, Vito Iannuzzi, by and through his attorney, Esquire and responds to the Rule to Show Cause issued by the Honorable Thomas and asserts the following reasons why Plaintiffs' Motion to Compel should not 1. A fair read of paragraphs 3 and 5 (actually the fourth paragraph of the Motion incorrectly numbered as "5") is that Plaintiffs need Defendant's tax and all bank statements for seven years so that Plaintiffs can "...discover information regarding damages PLAINTIFFS sustained in their breach contract (against) Defendant". (Emphasis added). 2. Defendant respectfully asserts that Defendants' tax returns and all bank are not relevant, nor can it lead to evidence of any alleged damages sustained from the alleged breach of contract, which is frivolous in its entirety. r~- i 3. In addition, Defendant affirmatively avers that the demand to produce seven years tax returns, and all bank statements is burdensome and oppressive and is intended harass and intimidate the Defendant, and is not intended to produce evidence to support Plaintiffs' claim for monetary damages (arising from Plaintiffs' failure to pay Defendant under the Installment Sales Agreement). 4. Plaintiffs' Motion in paragraph 6 refers to Plaintiffs' first Request for 'The Request for Admission reads as follows: "Was it ever your intent to keep restaurant (Miseno Pizza IT) a pub? Admit Deny 5. It is respectfully submitted that Plaintiffs' request is the same type of question asking "When did you stop beating your wife?" The question is improper certainly objectionable. In addition, Defendant respectfully directs the Coin's attention to paragraph 9 of Defendant's Response to Plaintiffs' Complaint. It pertinent part as follows: "By way of further response, the establishment at 598 W High Street was never a "pub" as averred in pazagraph 9 of Plaintiffs' Complain". (Emphasis added). 6. Defendant further asks this Honorable Court to consider the fallowing claims which Plaintiffs base their Complaint. A) Plaintiffs entire breach of contract centers on Defendant's establishment at West High Street known as "Miseno Pizza II Ristorante". The Court's attentio~~ is directed to § 19 of the "Installment -Asset Sale Agreement". Paragraph 19 as follows: "...anything to the contrary set forth in this pazagraph or notwithstanding, nothing herein shall prohibit Seller from the ownership or 2 known as Miseno Pizza II Ristorante ("Miseno Pizza II") (Emphasis added). B way for further response, Defendant did not open or operate a restaurant violation of § 19. Defendant owns and operates the restaurant excluded from the Agreement. The entire "Agreement" is attached to Plaintiffs Complaint and therein identified as Exhibit "A". It is respectfully submitted Defendant's then existing restaurant, Miseno Pizza II, is specifically from the Agreement. B) Plaintiffs' Complaint (pazagraph 10) avers that "...Defendant began copying menu of the Plaintiffs..." Defendant points to § 18 of the Agreement. claim is astonishing. THE DEFENDANT ALLOWED THE PLAINTIFFS USE DEFENDANT'S RECIPES. Defendant's recipes were and always been "...trade secrets of the Seller" (Defendant herein). C) Plaintiffs also claim that Defendant made renovations "...to more resemble the pizza shop of the Plaintiffs..." Defendant's establishment is only expressly excluded from the Agreement, but it also is owned by College. All renovations made to Defendant's establishment were made Dickinson College. D) Plaintiffs similarly claim that Defendant breached the Agreement by residential pizza deliveries. Again, Defendant's establishment is not expressly excluded from the Agreement, but the Agreement also reads as in §20 of the Agreement: "NO RESIDENTIAL DELIVERY: Bever shall not 3 engage in the delivery of pizza or other prepared food to residences until amounts have been paid to Seller under this Agreement" (Emphasis added). As~~ is clearly stated in the Agreement, PLAINTIFFS agreed not to make deliveries (until Defendant was paid in full). It is unbelievable that Plaintiffs would submit such a claim to this Honorable Court. E) Plaintiffs request that this Court ignore the express written terms of Agreement and permit discovery and parole evidence. Plaintiffs' claim is predicated on payment to Defendant from an unknown party made at the of Plaintiffs' father in the amount of $50,000.00. Plaintiffs admit that purchase price for the restaurant was $270,000.00. Plaintiffs also admit that,~~ at the time the Agreement was prepared and executed, the amount due under Agreement was $220,000.00, as stated in the Agreement. There is no dispute to the total purchase price, and no dispute that the amount stated in the was the amount due to the Defendant. 7. Defendant respectfully submits that Plaintiffs' entire Complaint, and the allegedly necessary to prove the Plaintiffs' damages, is a transparent attempt excuse, or at least divert attention from Plaintiffs' admission that Plaintiffs refused to pay the remaining $80,212.34 under the Agreement, plus interest attorney fees as stated in the Agreement. 4 WHEREFORE, Defendant respectfully requests that Plaintiffs' Motion to Compel l~ ~-- ~ ~: Richard P. Mislitsky, Esquire -Defense One West High Street -Suite 208 PO Box 1290 Carlisle, PA 17013 Supreme Court ID# 28123 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STI TO DELLA RAGIONE, and .LBA DELLA RAGIONE, d/b/a WINO'S PIZZA Plaintiffs v. IANNUZZI Defendant No.:12-2251 (Civil Term) CERTIFICATE OF SERVICE AND NOW, this 15~' day of August 2012, I, Jean Smith, do hereby certify that I serve e and correct copy of the Defendant's Response to Motion to Compel via First Class M tressed as follows: Hi ary Vesell, Esquire K pe & Associates, LLC 39 Saint Johns Church Road, Suite 101 C p Hill, PA 17011 1 M. Ledebohm, Esquire 90 A Fetrow Lane P Box 173 N w Cumberland, PA 17070 Respectfully submitted, can Smith, Legal Assistant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSLVANIA Strato Marco Della Ragione, aka Strato Marco Della Ragione, VOA Miseno's Pizza, aka Strato : Marco Della Ragione and Rosalba : Della Ragione aka Rosalba Della : Ragione, v. Vito lannuzzi„ Defendant : No. 12-2251 Civil Action, Law Plaintiffs : PRAECIPE TO ENTER APPEARANCE To the Prothonotary: Please enter my appearance on my own behalf in No. 12-2251, Civil. Respec Ily su mitted, Date: 14 it VITO IANNUZZI Defendant, Pro Se 598 West High Street Carlisle, PA 17013 717-240-0133 STRATO MARCO DELLA RAGIONE :iIN THE COURT OF COMMON PLEAS, aka STRATO MARCO DELLA ;CUMBERLAND COUNTY, PENNSYLVANIA RAGIONE tdba MISENO'S PIZZA : NO. 12 -2251 -CIVIL aka STRATO MARCO DELLE RAGIONE and ROSALBA DELLA RAGIONE aka ROSALBA DELLE RAGIONE : V. VITO IANNUZZI, DEFENDANT: 12 -2251 -CIVIL ACTION — LAW PRAECIPE TO WITHDRAW APPEARANCES AT THE REQUEST AND WITH THE CONSENT OF DEFENDANT To the Prothonotary: Please withdraw our appearances as attorneys of record in the above -captioned case at the request and with the consent of Defendant, Vito Iannuzzi who has also signed this docurnent. Dat, /. LtA 4,f Richard P. Mislitsky Attorney for Defendant S. Ct. # 28123 One W. High Street, P.O. Box 1290 Carlisle, PA 17013 717-2416363 Respectfully submitted, arl M. Ledebohm, Attorney for Defendant S. Ct. # 59012 P.O. Box 173 New Cumberland, PA 17070-0173 717-938-6929 Vito Iannuzzi, Defendant 3 Rockwell Court Carlisle, PA 17015 717-241-2924 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSLVANIA Strato Marco Della Ragione, aka Strato Marco Della Ragione, t/d/b/a Miseno's Pizza, aka Strato : Marco Della Ragione and Rosalba : Della Ragione aka Rosalba Della : Ragione, v. Vito Iannuzzi, Defendant : No. 12-2251 Civil Action, Law Plaintiffs : AFFIDAVIT OF NON-MILITARY SERVICE The undersigned Plaintiff, appearing pro se, hereby swears and affirms that to the best of Plaintiff's knowledge, neither Strato Marco Della Ragione nor Rosalba Della Ragione is currently on active military service. Date: / )9- Respectfu I submitted, VITO IANNUZZI Defendant, Pro Se 598 West High Street Carlisle, PA 17013 717-240-0133