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05-1621
SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, VS. DAMENTI'S INCORPORATED, Defendant TO: DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 16 4 l CIVIL TERM JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013-3302 (717) 249-3166 LAW OFFICES SNELBAKER & BRENNEMAN. P.C. Date: March 29 , 2005 SNELBAKER & BRENNEMAN, P.C. By At or Plaintiff SUSQUEHANNA AIR CONDITIONING IN THE COURT OF COMMON PLEAS OF REFRIGERATION SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION -LAW vs. : NO: 2005 - 1(0 ? 1 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., by its attorneys, Snelbaker & Brenneman, P.C., and avers the following: COUNTI-CONTRACT 1. The Plaintiff herein is SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., a Pennsylvania business corporation, having its principal office at 406 Darla Road in the Borough of Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant herein is DAMENTI' S INCORPORATED, a Pennsylvania business corporation, having its principal place of business at 870 North Hunter Highway, Mountaintop, Luzerne County, Pennsylvania 18707, trading and doing business under the registered fictitious name of "Damenti's Restaurant." 3. At all times relevant hereto, Plaintiff was in the business of selling, installing and servicing refrigeration and air conditioning equipment and systems, furnishing both labor and materials used in the performance of such services. LAW OFFICES If 4. During the fall of 2004, the Defendant entered upon and promoted a business SNELBAKER BC BRENNEMAN, P.C. venture to consist generally of the public exhibition of ice sculptures and other winter carnival activities to be known as "ICE 4 U 2 C" as presented by Damenti's Restaurant at the site known I and numbered as 900 Rutter Avenue, Forty Fort, Pennsylvania 18704. On or about November 12, 2004, Defendant contacted Plaintiff to provide refrigeration capabilities to support the promotion as described generally above. 6. Plaintiff, by its President, inspected the site on or about November 15, 2004, and advised Defendant of its interest generally in the business, but declined to undertake the business until Plaintiff was able to consult with various equipment suppliers and technical advisors. 7. On or about November 19, 2004, after consultation with equipment suppliers and technical advisors, Plaintiff initiated a telephone call from its office aforesaid to Defendant's principal, Kevin McDonald, and, after explaining Plaintiff's plan of proceeding, offered to provide the required materials and services on a time and material basis, in response to which Defendant orally accepted said proposal and directed Plaintiff to proceed with the project. Commencing as of November 23, 2004 through February 22, 2005, Plaintiff provided the materials, performed the services/labor and provided leased equipment as more fully set forth on Plaintiff's invoices to Defendant, true copies of which are attached hereto marked "Exhibit A" and incorporated herein by reference thereto, the prices, costs and expenses shown therein being those agreed to be paid by Defendant. 9. Defendant accepted said work, materials, equipment and leased equipment, all as LAW OFFICES SNELBAKER & BRENNEMAN, P.C. provided by Plaintiff. 10. Plaintiff hand-delivered and mailed the above mentioned invoices to Defendant on or about the respective dates thereof. 2 11. Defendant made no objections to the content of said invoices, and Defendant made payments on account of the charges contained therein. 12. The labor charges for Plaintiff's services as set forth in the above invoices are computed at Plaintiff's standard hourly rates, said rates being fair and reasonable and those agreed to by Defendant. 13. The charges for equipment and materials furnished by Plaintiff as set forth in the above mentioned invoices are computed at Plaintiff's standard prices, said prices being fair and reasonable and those agreed to by Defendant. 14. The charges for leased equipment furnished by Plaintiff as set forth in the above mentioned invoices are fair and reasonable and those agreed to by Defendant. 15. Attached hereto marked "Exhibit B" is a true and correct copy of Plaintiff's record of Defendant's account showing all of Plaintiff s charges and Defendant's payments on account. Said statement indicates an unpaid balance of $70,028.83. 16. Plaintiff has heretofore demanded payment of said sum of $70,028.83 by Defendant, which Defendant has failed and refused to pay. WHEREFORE, Plaintiff demands judgment against Defendant for the sum of $70,028.83 plus interest from the due dates of the above mentioned invoices, the costs of collection, legal fees and the costs of this action. The damages claimed by Plaintiff herein exceed the amount established by this Court for mandatory arbitration. LAW OFFICES SNELBAKER SC BRENNEMAN, P.C. ALTERNATIVE: COUNT II - QUANTUM MERUIT In the event it is determined that no express contractual basis existed in fact or law as I alleged in Count I above, Plaintiff avers in the alternative as follows: 17. The averments contained in paragraphs 1 through 16 hereinabove are incorporated herein as though set forth at length hereinbelow. 18 Defendant accepted Plaintiff's work, labor, materials and equipment and used the leased equipment provided by Plaintiff. 19. Plaintiff's work performed, materials consumed and equipment used collectively improved and enhanced the value of Defendant's business venture as averred in paragraph 4 hereinbelow. 20. The fair market value of Plaintiff's labor performed and materials and equipment provided are the values set forth in Plaintiff s invoices attached hereto as "Exhibit A" and incorporated herein by reference thereto. 21. Defendant has failed and refused to pay the fair market value of said labor, materials and equipment furnished by Plaintiff as aforesaid. 22. It is unjust for Defendant to receive, use and consume the values of Plaintiff's labor, materials and equipment without full payment therefor. WHEREFORE, Plaintiff demands judgment against Defendant for the sum of $70,028.83 plus interest from the due dates of the above mentioned invoices, the costs of collection, legal LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 4 fees and the costs of this action. The damages claimed by Plaintiff herein exceed the amount established by this Court for mandatory arbitration. SNELBAKER & BRENNEMAN, P.C. By and C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone (717) 697-8568 Attorneys for Plaintiff LAW OFFICES SNELBAKER & BRENNEMAN. P.C. C 7US A AIR CONDITIONING REFRIGERATION SERVICE, INC. INVOICE 406 Darla Road Mechanicsburg, PA 17055-6659 Telephone (717) 774-1023 Fax (717) 766-8773 INVOICE NUMBER 3 CUSTOMER ORDER NO.: F INVOICE DATE: ?- 7 -0 s ICE 4 U 2 C DWIXTI'S RESTAURANT C ?61 C/O KEVIN HODONALD JOB NAME: C 000 h"UNTER HUM JOB LOCATION: ??o ? ?_/ VGG LMT. TOP PA 18707 ? % ./ ? o /?'r` /' Grz ??• / ?' 7G `? i NATURE OF CALL: UA nuc. 1rCT 1n nwv0 rnnu r?rvnrl-c nwTr r r.. C... /`..it,.d.... A-A 1 .....J Cm. A7 :..:.. - c....j- l'h_- tl /rl n Job # Contact 1'G K.?'GJ 4 T&M Quoted Contract Warranty Quoted PM Promotional 1' , i / : /? v:Tf1 uAr?o ?•?.4 Tc.15' rt/ Ar? = A . s< < c != a u -? .rr i S .., ?/? lair' iti G i Ll i / e e- 4-0 ?O T ?1'!`iL r/t=S /rL!i r' G?1i'd?',f??Z.S • f GSvC? ?'S1.?i?% J?G??'r G.JIN .?..'?' Nss'?6?y?N rC?,/4.?:' / ?4i„/ f ?n r J Ito N7 ?r7 d v! v' !'-.:J"/,, c..?/T/! ,c,? ? cA` fsrv rl?pf/1S A.-rJ OrZ??rrn; G/N? !??"9 j" ? .rl/'-•i c-?vr .b /L! /k7 Fi? ,?-r -/Li4 G.r^r . ?Jl.:l?/.? ?' yrAee./. t.. C /i<?i .? / L.O?=C t/r'/! //, r/f-'. ?L C?C.E /%^ r /,?/i'??"i,l .?j/+e1?t,i <'.3 L />ti?' SG 1! :..G/ice. //?4s:'?;'Gi,J 'a !%.I.r1 r Lv?7/? .//? ?,+/© l/? r4rr".I_J e'.//!r ,4,? -'v . ,?!C'?? ? / 4r >??'?-"Sts rc . r [,?" ?y ?-x? . F ,: ... T ? ? S?1 i • N _ •?M ?, ? ?'?.? iAL7E?l S_ ?s ( r +t`+'Pr Y , -?ri•c G 4.321 .51 /`f l?ACcn/oa ?/o v / •?.,= C'?a<,? 147 .74 2,48 .14 --"Lz 7 7 4L,"X `!?u. ?? ,-«ls 227 .25 V6 ?Al 36 .66 23 .00 *v ",*!v /I? 9.,?i; 19 .49 'G '?? 158 .29 140 .74 50 .64 11 .68 q 7 / TOTAL MATERIAL AS PER CONTRACT 6 16 ?G% LABOR REGULAR 6 ???y r 1r? % .lam fie'-?=1?: .?•? ?C 2z ? c /o TPUCX, FUEL 28 .82 ff? ?Tr'/?i; L •T/`)/GL /rte TRUCKCHARGE 4-TRIPS 2--TRUCKS 120 .00 ??J SUB TOTAL 3.57 .35 V1 c /? PA SALES TAX TOTAL (13.572.35 Date Technician Signature f EXHIBIT A (Page I of 4 Pages) USQUEHAMVA Alit CONDITIONING REFRIGERATION SERVICE, INC. INVOIC 406 Darla Road Mechanicsburg, PA 17055-6659 Telephone (717) 774-1023 Fax(717)766-8773 INVOICE NUMBER 4366 CUSTOMER ORDER NO.: -ICE4'"2C & DA.10ATI'S RESTRAURANT INVOICE DATE: C/O KEVIN Mc13(A,1LD JOB NAME: L CG" ?/ U r,2 G 870 FU'b-M ,t;7 JOB LOCATION: MT.TOP PA 1E L NATURE OF CALL: a??J Ta-t / /? X S!?"?J 1 TERMS: NET 3) DAYS FROM IN'?OICE DATE. Liable For Collection And txeal Fees. Minimum Service Chame SIR). Joh I Contact T&M Quoted Contract Warranty Quoted PM Pmmotional ? • p_ ,fin try. a ?.'r ?` •4?3;` .N??L. (,.+ y? / /K•?,. r?J „ D.Qn/iV N/b 4P++,J `!"1 G, GV/.CIf IJf TIi S 9wf '' ri1 W?Sllci; ? 'e441 AO 2 47 ?? ? / 1/1Jd Gi1T ?"'?r? T`-RT!=?S r'U/.?ti' ?=/'fir''--f ??i???if' Ll.••J wr" L/.?!-' ? ??..vii.?S. /l?fw?.i?. f1 / ,vti /T ?,..ri ,v/v?acT,G'• ?'?=?%J1ll;r?i.?vv L?.,,C?S ! ?? ? t%=' Ali ? r.?/J?f d/e/lRd6'!s+? ??? i c"t-', .. r Lp/f0/?. ;. ?•Ll// "?i? / '.u /!! VY/,1 f= %lLrl) nrA,.+/ ?'0. ? ;ew ri f?' .`. f19G r? fj <J/il Gr1 /4`'?1J .Le'-'igt4??dl ?l_'?.? ji-?G'?..i?/E? f?'`-`"i??t?L. s 71CN li'[oED .94 !o t/A«s `' A?3'z5,r%i 6-49 .54 "d 6i e-c x,,15 y; 1 Ao/ qy c,?,r1S ''--' o wit , /lr-Hit°.Z 1,314 G S o? ync'`/ ?? tJ?>s ?il? G 5 36- Qd+ ?2 voc, 2,673 55 87 =-i???.>r _ 1 , ?tlC1 C?Ci /d ' 7 ' rv' •<?.= 13l 83 r 657 36 150 lJl ?/i / 69A 65 y K ll ?tv # NA? ? ? r '??N 3? ? + ? $ v TOTAL NUNTERIAL AS LABOR REGULAR 434 CU .,'lic s, f ? ?/-1C C. .?? '/ir I_r',?,t?: [:'iCf'•2:i7i.A(:`i ,C':C{' {SO 1.1.5 ''Afi?r:.LAI CI1'!' ("r ?'{' 1,144 19 TRUCK CHARGE SUBTOTAL S< g- 4f: PA SALES TAX r- T TOTAL 2 92".40 Dalc Technician Signature EXHIBIT A (Page 2 of 4 Pages) USQUEHANNA AIR CONDITIONING REFRIGERATION SERVICE, INC. INVOICE 406 Darla Road Mechanicsburg, PA 17055-6659 Telephone (717) 774-1023 Fax(717)766-8773 INVOICE NUMBER 4384777] 1 __1 CUSTOMER ORDER NO.: 121 ICE4U2C & DAN MI' S RESTRAURANT INVOICE DATE: C/O KEVIN I+Ii WNALD JOB NAME: 870 HURTER MY JOB LOCATION: Sao ? G'%?!??? ?t!= LIr,T.TOP PA 18707 NATURE OF CALL: -uc...r. r an -A- -1 .-/ 1111. 1_ C.•rv;- rh-, t'1 no Job # Contact T&M Quoted Contract Warranty Quoted PM Promotional w ,9Mr tis ....;;, •a r /Fi' -" T/G'N /~... - ??/< •f% ?r <.ejJ t r.=l'... .: '-'?lf? y ? ti J JL .j`. •. r .- i ? > i., r.'11./ ", G `/!"G ?. ? J/.` ,, ?J?'?!- ?. i ... .!,i.r"T/.• '-i-.G ? ? a?aL. Vf= //L//=?? ?G.? [?1?? ?9 F"1 /1 ?iJJ1 ???'•_,j.?! I..?,r% /?. rr / N r!/lI??J/? G' L??'/ /-:t??.? <--c,,../7"?/% ?,ti=? , 1? hr's=: .f :, ,.?•,4, ?r,;rrs- !-,<. ?-,, ? u/?"_ : "15 Dd a„J ?r9,y. 7,2 .00 I/ ?/? .'V,?.-• 750, 00 / G "a/4' 2*40 $ 0 . 7 0V G L'rr .? 604 0 / ? .00 t9,- 1 . O 20( .00 e-2 800 .00 3 t 't'NIiC (yal?si?.a<' 3,40( .00 150 .00 1,13 .34 9C . 00 50 .00 / / ^! r? " ' " C..> k ?! / '?: t,z• r .. ? <' 4 . 00 .','y ?. t 'C a ? c;?, b ; r i? s ? _ 1 ,. j, j Qr?.?., ? )/yp,: ? Ut yS f ?? ;?.? i?A t - TOTAL MATERIAL PER CONTRACT 2-q ,937. 64 4;? v'; c L /O ua LABOR REGULAR 522. ,t3 iC:.. 71 / %i/ k ;--',' /,:. ?..:,, d_';.: /? ..iv, ,1 r.? .r to / /)ri.,.,. t r't';?YL/=,?s•= CL Yr's ?. 421. 3 l?a4, z!^%',r 352. TRUCK CHARGE 8-ALGA TXV S CAGE ASSMY 635. 1 / SUB TOTAL ?i/."._''% /t ?'a ?''-=t ??•` ~i?. o PA SALES TAX 69.08 . TOTAL $37.1 Date -Technician Sivature EXHIBIT A (Page 3 of 4 Pages) INVOICE USQUEH"il ?.L 1'ti A 7?7?1?7,1 406 Darla Road Mechanicsburg, PA 17055-6659 INVOICE NUMBER AIR CONDITIONING Telephone (717) 774-1023 4404 REFRIGERATION SERVICE, INC. Fax (717) 766-8773 1 CUSTOMER ORDER NO.: 1CE4U2C 6t DAMENT'S RESTRAURANT INVOICE DATE: /7 - ?/ C/O REM McDONALD JOB NAME: C '?/C/ 07 870 HUNTER WY JOB LOCATION: 1ao T14-,w 4v&- MT. TOP PA 18707 ./??? ???zi %?A, / 87a Y L NATURE OF CALL: _?? Ali%?= ?t'•v% SIG TERMS: NET 30 DAYS FROM INVOICE DATE. Liable For Collection And Leeal Fees Minimum S-ira rh- v) on Job # Contact v T&M Quoted Contract Lw Quoted PM Promotional /21 el DA''TF 3 t?F 6 'G Lpy34?±^ 1 I 5 X ME ? w?r,;,?4r•+? *k ,T-f?.,n? a=?`,?'-? K R2i ¢`, Y,_1 K- : ?4 !lF .Z_ 4 ??tr 3k; t } 4 f, 4. R a? ,?<Y ? day ?,1 M r r, U. 'ik '>; ?? _ Vi?f 1 TOTAL MATERIAL AS pER CONTRACT 1, 99 .00 LABOR REGULAR TRUCK CHARGE SUB TOTAL 11995 .00 PAS ES AX D to TOTAL $1, 995. 00 Technician Signature EXHIBIT A (Page 4 of 4 Pages) USQUEHANNA AIR CONDITIONING REFRIGERATION SERVICE, INC. 446 Darla Road • Mechanicsburg, PA 17055-6659 • (717) 774-1023 • FAX (717) 766-8773 ICE 4 U 2 C DAMENTI'S RESTAURANT STATEMENT OF ACCOUNT INVOICES DATE #4305 01/07/05 #4366 02/01/05 #4384 02/18/05 #4404 03/17/05 LESS: PAYMENTS ON ACCOUNT DATE 12/06/05 DATE 12/13/05 DATE 02/13105 AMOUNT $13,572.35 $37,292.40 $37,169.08 $ 1,995.00 TOTAL $90,028.83 $ 5,000.00 $ 5,000.00 $10,000.00 TOTAL $209000.00 BALANCE DUE: * PLUS COLLECTION AND LEGAL FEES $70,028.83 * EXHIBIT B VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Susquehanna Air Conditioning Refrigeration Services, Inc., the Plaintiff in the foregoing Complaint; that I am authorized to make this verification on behalf of the Plaintiff, that the facts contained in said Complaint within my personal knowledge are true and correct; that the facts contained in said Complaint not within my personal knowledge, I believe them to be true and correct based upon the information of others; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. Forest R. Baker, Jr. Dated: March 29, 2005 LAW OFFICES SNELBAKER & RENNEMAN, P.C. M1? C"1 C?- CL T V'4 7 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-01621 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUSQUEHANA AIR CONDITIONING VS DAMENTI'S INCORPORATED R. Thomas Kline , Sheriff or Deputy Sheriff who duly sworn according to law, says, that he made a diligent sea and inquiry for the within named DEFENDANT , to wit: DAMENTI'S INCORPORATED but was unable to locate Them deputized the sheriff of LUZERNE serve the within COMPLAINT & NOTICE in his bailiwick. He theref 2005 , this attached return from LUZERNE Sheriff's Costs: So Docketing 18.00 Out of County 9.00 Surcharge 10.00 17 Dep Luzerne County 30.00 Postage .74 67.74 04/06/2005 SNELBAKER BRENNE Sworn and subscribed o before me this day of GvS A.D? r Protlhonotaxy? County, Pennsyl ce was in rec f of Cumberland County being and to i In The Court of Common Pleas of Cumberland County, Susquehanna Air Conditioning Refrigeration Services Inc vs. Darnenti's Incorporated No. 05-1621 Now, March 29, 2005 ,1, SHERIFF OF CUMBERLAND COUNT hereby deputize the Sheriff of Luzerne County to execute this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Affidavit of Service Now, within upon at by handing to and made known to So answers, the contents Sworn and subscribed before me this _ day of 20, 20 , at o'clock M. copy of the original Sheriff of COSTS SERVICE MILEAGE _ AFFIDAVIT $ lvania , PA, do Writ, this the PA OD (570) 825-1860 FA (570) 825-18 Luzerne County Sheriffs Department Luzerne County Courthouse HEPI S 200 North River Street Wilkes-Bane, Pennsylvania 18711 (570) 825-1651 CUMBERLAND COUNTY 2005-1621 SUSQUEHANNA AIR CONDITIONING REFR INC. ERATIONSERVICES, VS DAMENTTS INCORPORATED STATE OF PENNSYLVANIA LUZERNE COUNTY, SS: MARK SENCZAKOWICZ DEPUTY SHERIFF, for SHERIFF of said county, be ng duly sworn according to law, deposes and says, that on WEDNESDAY the THIRTIETH day of MARCH 20 05 at 11:55 A.M. M., prevailing time, he serve the within NOTICE AND COMPLAINT upon DAMENTTS INCORPORATED the within named, by handing toKEVIN MCDONALD the person for the time being in charge at THE PLACE OF BUSINESS, 870 NORTH HUNTER HIGHWAY, MOUNTAINTOP i the County of Luzeme, State of Pennsylvania, a true and attested copy and making known the tents thereof. c Vd! C: Sworn to and subscribed before me Sheriff of Luzeme County this THIRTIETH day of MARCH 20 05 by rE 49 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Vs. NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of the Defendant, Damenti's Incorporated. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant BY: TIWA l Thomas L. Kennedy, Esqu9.re' I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 c?• __.I - SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. C/O RICHARD C SNELBAKER ESQUIRE SNELBAKER & BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17955-0318 YOU ARE HEREBY NOTIFIED to plead to the enclosed PRELIMINARY OBJECTION within twenty (20) days from service hereof or a default judgment may be entered against you. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's Incorporated BY: Thomas L. Kennedy, Esquu? I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - :LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED PRELIMINARY OBJECTION OF DEFENDANT, DAMENTI'S INCORPORATED Damenti's Incorporated, by and through its attorneys, Kennedy and Lucadamo, P.C., hereby files this Preliminary Objection to the Complaint of the Plaintiff and avers as follows: PRELIMINARY OBJECTION RAISING IMPROPER VENUE PURSUANT TO PA.R.C.P. 1028(a)(1) 1. Plaintiff filed its Complaint against the Defendant on March 29, 2005. 2. The Complaint was served upon the Defendant on March 30, 2005 at its place of business at 870 North Hunter Highway, Mountaintop, Luzerne County, PA 18707. 3. The venture described in its Complaint by the Plaintiff is one for which it allegedly provided refrigeration capabilities, which venture was conducted at a site known as 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania, and at no other site. 1 4. Plaintiff avers that, through its President, it inspected the site in Luzerne County on November 15, 2004. 5. Plaintiff's offer to provide services took place at a meeting with Kevin McDonald, a member of LMcD, LLC trading as Ice 4 U 2 C at Top of the 80s Restaurant in Sugarloaf Township, Luzerne County, Pennsylvania. Plaintiff's offer was accepted by Kevin McDonald at that time as a member of LMcD, LLC trading as Ice 4 U 2 C. 6. Plaintiff received $5,000.00 on December 6, 2004 from Kevin McDonald, as a member of LMcD, LLC trading as Ice 4 U 2 C, in cash and delivered to Plaintiff in Forty Fort, Luzerne County, Pennsylvania. 7. Plaintiff received $5,000.00 on December 13, 2004 from Kevin McDonald as a member of LMcD, LLC trading as Ice 4 U2 C, in cash, and delivered to Plaintiff at Forty Fort, Luzerne County, Pennsylvania. 8. Plaintiff avers that between November 23, 2004 and February 22, 2005, it provided materials, performed services and labor and provided leased equipment, all at the project site and job location of 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania. 9. The registered office and principal place of business of the Defendant is in Luzerne County, Pennsylvania. 2 10. The Defendant conducts its restaurant business solely in Luzerne County, Pennsylvania. 11. All of the alleged work and materials provided by the Plaintiff, were provided in Luzerne County, Pennsylvania. 12. No transaction or occurrence took place in any other county other than Luzerne County, Pennsylvania. 13. The Defendant does not and has not regularly conducted business in Cumberland County, Pennsylvania. 14. The alleged contract between the Plaintiff and Ice 4 U 2 C, the registered fictitious name of LMcD, LLC, was accepted by performance of the Plaintiff, which performance took place exclusively in Luzerne County, Pennsylvania. 15. Cumberland County, Pennsylvania has no relationship to the controversy between parties to this lawsuit. 16. Luzerne County has a substantial relationship to the controversy between the Plaintiff and the Defendant and is the proper forum to adjudicate the dispute. 17. The Complaint fails to aver that the Defendant accepted an offer of the Plaintiff in Cumberland County. 18. The transaction and occurrence under which the Plaintiff provided services to Ice 4 U 2 C, the registered fictitious name of LMcD, LLC, took place exclusively in Luzerne County, Pennsylvania. 3 WHEREFORE, Defendant, Damenti's Incorporated, prays this Honorable Court that its Preliminary objection in the nature of its objection to improper venue be granted and the action transferred to the Court of Common Pleas of Luzerne County, Pennsylvania. Respectfully submitted, KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's, Inc. BY: Tho as L. Kennedy, Esquir I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 570-459-2440 4 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED V E R I F I C A T I O N I, KEVIN McDONALD, hereby verify that. I am the President of Damenti's Incorporated, the Defendant in the above captioned matter, and that the facts set forth in the foregoing Preliminary Objection, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: K IN McDONALD 5 ?_' n C 7 ;? -1 Y:. ???-f '?? i'.1 ? ",' _i ?? [ ?? ` ?1`i} (? G..7 .J PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. (June 1, 2005) SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, Plaintiff V. DAMENTI'S INCORPORATED Defendant No.: 2005-1621 Civil Term 1. State matter to be argued: Defendant's preliminary objection to Plaintiff's complaint. 2. Identify counsel who will argue case: (a) for Plaintiff: Richard C. Snelbaker, Esquire or Keith 0. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 (b) for Defendant: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: June 1, 2005 SNELBAK RE EMAN, P.C. By: Aee<, Attoi ey for t-if te: May 3, 2005 Thomas L. Kennedy, Esq. n7 .-? ? tf9 <,7 i7 V? ? ? t ? ,? ? j? i= , T ?-"? i <; ??-" ~? ` ? C `> _ _. = r;?? r ?_i f N '? SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, vs. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTION AND NOW, comes Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc.. by its attorneys, Snelbaker & Brenneman, P.C., and responds to Defendant's Preliminary Objection Raising Improper Venue as follows: Admitted. Admitted. It is admitted that Defendant's business venture was physically conducted at the site known as 900 Rutter Avenue, Forty Fort, PA, as averred in paragraph 4 of Plaintiffs Complaint. It is denied that the Plaintiff's activities in providing refrigeration capabilities was limited to the site known as 900 Rutter Avenue, Forty Fort, PA. On the contrary, Plaintiff s ordering/purchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and general business operations were conducted at Plaintiffs place of business and office: to wit: 406 Darla Road, Borough of Mechanicsburg, Cumberland County. Pennsylvania. 4. Admitted. LAW BRENNEMAN, P.C. 5. It is denied that Plaintiffs offer to provide services to Defendant was made and that said offer was accepted by Kevin McDonald at the Top of the 80s Restaurant in Sugarloaf 'Township, Luzerne County, Pennsylvania. On the contrary, the offer to provide materials and services and Defendant's acceptance thereof occurred on or about November 19, 2004, in Cumberland County, Pennsylvania, in a telephone conversation initiated by Plaintiff, as more fully averred in paragraph 7 of Plaintiff s Complaint, which averments are incorporated herein by reference thereto, After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a believe as to the truth of the averment that Kevin McDonald was a member of LMcD, LLC, trading as lee 4 U 2 C, and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(e), proof of which is demanded, if relevant. 6. It is admitted that Plaintiff received $5,000 in currency on December 6, 2004 from Kevin McDonald at Forty Fort, Luzerne County, Pennsylvania. It is denied that said money was received from Kevin McDonald as a member of LMcD, LLC, trading as Ice 4 U 2 C. On the contrary, said money was delivered by Kevin McDonald on behalf of Damenti's Incorporated, the Defendant herein. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Kevin McDonald was a member of LMcD, LLC, trading as Ice 4 U 2 C, and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 7. It is admitted that Plaintiff received $5,000 in currency on December 13, 2004 from Kevin McDonald at Forty Fort, Luzeme County, Pennsylvania. It is denied that said money was received from Kevin McDonald as a member of LMcD, LLC, trading as Ice 4 U 2 C. On the contrary, said money was delivered by Kevin McDonald on behalf of Damenti's Incorporated, the Defendant herein. After reasonable investigation, Plaintiff is without LAW OFFICE sNELaAK & .C. knowledge or information sufficient to form a belief as to the truth of the averment that Kevin BRENNEMAN. McDonald was a member of LMcD, LLC, trading as Ice 4 U 2 C, and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 8. It is denied that Plaintiff averred that all of its work and services were performed exclusively at "the project site and job location of 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania." On the contrary, Plaintiff s actual averments are contained in paragraph 8 of its Complaint, which averments are incorporated herein by reference thereto. By way of further response, it is averred that while work was performed and materials delivered to said "project site and job location", Plaintiffs work and services included the ordering/purchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and equipment and general business operations were conducted from Plaintiff s place of business and office, to wit: 406 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. 9. Admitted. 10. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Defendant conducts its restaurant business solely in Luzerne County, Pennsylvania, and, therefore, said averment is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 11. It is denied that all of the alleged work and materials provided by Plaintiff were provided in Luzeme County, Pennsylvania. On the contrary, Plaintiff s work and materials included work and services elsewhere, such as the ordering/purchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and equipment, and general business operations as conducted from Plaintiffs place of business and office, to wit: LAW OFFICE sNEL9AKER & C 406 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. BR ENNEMAN, . 12. It is denied that no transaction or occurrence took place in any other county other than Luzerne County, Pennsylvania. On the contrary, the original offer and acceptance occurred in Cumberland County, Pennsylvania as averred in Paragraph 7 of Plaintiff s Complaint, which averments are incorporated herein by reference thereto, and Plaintiffs work and service included substantial work and service at Plaintiffs place of business and office as averred in Paragraph 11 hereinabove, which averments are incorporated herein by reference thereto. 13. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments that Defendant does not and has not regularly conducted business in Cumberland County, Pennsylvania, and. therefore, said averments are deemed to be denied pursuant to Pa. R.C.P, (I 029(c), proof of which is demanded, if relevant. 14. It is denied that any contract existed between Plaintiff and LMcD. LLC. trading as Ice 4 U 2 C. On the contrary, the contract on which Plaintiff s action is based is between Plaintiff and Damenti's Incorporated, Defendant herein, as averred in Plaintiff s Complaint, all of which averments are incorporated herein by reference thereto. It is further denied that any contract was accepted by Plaintiff's performance in Luzerne County, Pennsylvania. On the contrary, the contract was formed by a telephone conversation as averred in paragraph 7 of Plaintiffs Complaint, which averments are incorporated herein by reference thereto. It is further denied that Plaintiff s performance of the contract took place exclusively in Luzerne County, Pennsylvania. On the contrary, substantial portions of said performance occurred in Cumberland County, Pennsylvania, as averred in paragraphs 8, 11 and 12 hereinabove, all of which averments LAW OFFICE SNELBAKER & are incorporated herein by reference thereto. BRENNEMAN, .C. 15. It is denied that Cumberland County, Pennsylvania, has no relationship to the controversy between the parties. On the contrary, Cumberland County is the situs of the parties' contract, being the place where the offer and acceptance were made as averred in paragraph 7 of Plaintiff's Complaint, which averments are incorporated herein by reference thereto, and also being the place where Plaintiff performed substantial portions of said contract as averred in paragraphs 8, 10 and I 1 hereinabove, all of which averments are incorporated herein by reference thereto. 16. The content of paragraph 16 of the Preliminary Objection is a series of conclusions of law to which no response is required and, therefore, is deemed to be denied pursuant to Pa. R.C.P. 1029(d). If said content is determined to be factual, it is denied. On the contrary, Cumberland County is the situs of the contract, being the place where the offer and acceptance were made as averred in paragraph 7 of Plaintiff s Complaint. which averments are incorporated herein by reference thereto, and also being the place where Plaintiff performed substantial portions of said contract as averred in paragraphs 8, 10 and 1 1 hereinabove, all of which averments are incorporated herein by reference thereto. By way of further response, it is averred that physical observation of Defendant's operation in Luzern County is unnecessary in the trial of this case. 17. It is denied that the Complaint fails to aver that Defendant accepted Plaintiff's offer in Cumberland County. On the contrary, it is averred that the acceptance was communicated to and received by Plaintiff at its office in Cumberland County, Pennsylvania, as averred in paragraph 7 of Plaintiff s Complaint, which averments are incorporated herein by LAW BRENNEMAN. ?.C. reference thereto. 18. It is denied that Plaintiff provided services to Ice 4 U 2 C or LMcD, LLC. On the contrary, Plaintiff's work and services were provided to Damenti's Incorporated, Defendant herein, as averred in Plaintiff s Complaint, all of which averments are incorporated herein by reference thereto. It is further denied that Plaintiffs services were provided exclusively in Luzerne County, Pennsylvania. On the contrary, substantial services were performed by Plaintiff for Defendant in Cumberland County, Pennsylvania, as averred in paragraphs 8, 10, and 1 1 hereinabove, which averments are incorporated herein by reference thereto. WHEREFORE, Plaintiff respectfully requests your Honorable Court to dismiss Defendant's Preliminary Objection. SNELBA & BRENNEMAN. P.C. By 'Richard C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone(717)697-8568 Attorneys for Plaintiff LAW OFFICE SNELBAKER & BRENNEMAN, C. VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Susquehanna Air Conditioning Refrigeration Services, Inc., the Plaintiff in the foregoing Answer to Preliminary Objection; that I am authorized to make this verification on behalf of the Plaintiff; that the facts contained in said Answer to Preliminary Objection are true and correct; to the best of my knowledge, information and belief; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unswom falsification to authorities. Forest R. Baker, Jr. Dated: May 2, 1 2005 LAW OFFICE SNELBAKER H, BRENNEMAN, C. CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiff's Answer to Preliminary Objection by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Ric and C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg,PA 17055-0318 Attorneys for Plaintiff Dated: May 3, 2005 LAW BRENNEMAN, .l 4 7 T. C.wl f•?l SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED AFFIDAVIT OF CORPORATE OFFICER IN SUPPORT OF PRELIMINARY OBJECTIONS COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS KEVIN McDONALD, being duly sworn according to law, deposes and says that: 1. I am the President of Damenti's Incorporated. 2. On December 29, 1989, Damenti's Incorporated, a statutory close corporation, was incorporated under the laws of the Commonwealth of Pennsylvania. Its registered office in Pennsylvania on the Articles of Incorporation is listed as R.D. #9, Route 309, Mountaintop, Lucerne County, Pennsylvania, 18707. Attached as "Exhibit A" to this Affidavit is a true and correct copy of the 1 Articles of Incorporation. There has been no change since incorporation, and the office remains at Mountaintop, Luzerne County, Pennsylvania. 3. On April 2, 1990, Damenti's Incorporated, a statutory close corporation, filed a Fictitious Name Application with the Pennsylvania Department of State, indicating its ficititous name of Damenti's Restaurant, and further indicating that the location of its principal place of business in the Commonwealth as R.D. 9, Route 309, Mountaintop, PA 18707, and that its registered office continued to be the same address. A copy of that Fictitious Name Registration is attached hereto as "Exhibit B." 4. Damenti's Incorporated operates only one (1) business, a restaurant serving food and liquor with its location at Route 309, Mountaintop, Luzerne County, Pennsylvania. 5. Damenti's Incorporated has never operated a restaurant or conducted any business in Cumberland County, Pennsylvania, does not advertise its business in Cumberland County, takes no acts in Cumberland County essential to its business of operating a restaurant in Mountaintop, Pennsylvania, and conducts no acts in Cumberland County which are collateral or incidental to the operation of its restaurant in Luzerne County. 6. Neither I nor any other corporate officer or shareholder of either Damenti's Incorporated or Ice 4 U 2 C has ever physically been 2 present at the Plaintiff's place of business at 401 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. 7. The oral contract made by the Plaintiff to provide services and materials to Ice 4 U 2 C was made in Sugarloaf Township, Luzerne County, Pennsylvania, at Top of the 80s Restaurant in November of 2004. 1 am a member of Ice 4 U 2 C, a limited liability company. 8. Any telephone calls by me to the Plaintiff or from the Plaintiff to me were incidental to the contract between Ice 4 U 2 C and the Plaintiff, which contact was made in Luzerne County, Pennsylvania. 9. Any telephone conversations between me and corporate officers of the Plaintiff were engaged in by me solely at the place of business of Damenti's Incorporated in Mountaintop, Luzerne County, Pennsylvania, or Forty Fort, Luzerne County, Pennsylvania, the location of Ice 4 U 2C. 10. The Plaintiff first accepted currency to bind its agreement to provide materials and perform services to Ice 4 U 2 C on December 6, 2004 in Forty Fort, Luzerne County, Pennsylvania. 11. The Plaintiff later accepted currency in the amount of Five Thousand and no/100 ($5,000.00) Dollars to provide services and materials on December 13, 2004 at Forty Fort, Luzerne County, Pennsylvania. 3 12. Neither Damenti's incorporated nor Ice 4 U 2 C has ever sponsored an event in Cumberland County, Pennsy ia. KEVIN McDONALD Sworn to and subscribed before me is day of May, 2005. dA Notary Public NOTARIAL SEAL PAULA L. HOATS, NOTARY PUBLIC HAZLETON,LUZERNECOUNTY MY COMMISSION EXPIRESAPRIL 10, 2006 4 EXHIBITA ARTICLES OF INCORPORATION USCG 204 (,rev. 81) PLEASE INDICATE (CHECK ONE) TYPE CORPORATION: 'ARTICLES OF INCORPORATION ? DOMESTIC BUSINESS CORPORATION Co DOMESTIC BUSINESS CORPORATION I FEE A CLOSE CORPORATION - COMPLETE BACK $75.00 COMMONWEALTH OF PENNSYLVANIA 0 DOMESTIC PROFESSIONAL CORPORATION DEPARTMENT OF STATE - CORPORATION BUREAU ENTER BOARD LICENSE NO. 308 NORTH OFFICE BUILDING, HARRISBURG. PA 17120 l 010 NAME OF CORPORATION (MUST CONTAIN A CORPORATE INDICATOR UNLESS EXEMPT UNDER 15 P.S. 2904 BI DAMENTI'S INCORPORATED - A STATUTORY CLOSE CORPORATION 011 ADDRESS OF REGISTERED OFFICE IN PENNSYLVANIA (P.O. BOX NUMBER NOT ACCEPTABLE) 012 CITY 033 COUNTY 019 STATE 064 ZIP CODE Mount ain to, Luzerne Pa. 18707 050 EXPLAIN THE PURPOSE OR PURPOSES OF THE CORPORATION The Corporation;-_i.,s.,a,-•S,t.a-t,u,t.ory Close Corporation incorporated under the Pennsylvania Business Corporation Law of 1988 and shall have unlimited power to engage in any lawful business and to do any lawful act for which corporations may be incorporated under the Pennsylvania Business Corporation Law of 1988. EF)c /-.2-YO (ATTACH ah x 11 SHEET IF NECESSARY) The Aggregate Number of Shares, Classes of Shares and Par Value of Shares Which the Corporation Shall Have Authority to Issue: 040 Number and Class of Shares 041 Stated Par Value Per 042 Total Authorized Capital Share If Any '500,000 shares common $1.00 $500.000.00 The Name and Address of Each to 031 Term of Existence Perpetual 060 Name 061.062 063. 064 Address (Street, City. Slate. Zip Code) Number d Class of Shares Kevin McDonald R.D. #9, Route 309, Mountaintop, PA. 18707 25,000 shares Helen E. McDonald R.D.#9, Route 309, Mountaintop, PA. 18707 25 000 shares _ (ATTACH Bv. x 11 SHEET IF NECESSARY) IN TESTIMONY WHEREOF, THE INCORPORATOR(S) HAS (HAVE) SIGNED AND SEALED THE ARTICLES OF INCORPORATION THIS 26t DAY OF December ._1 -9- Kevin McDonald Helen E. McDonald - FOR OFFICE USE ONLY - _ 030 FILED 002 CODE 003 REV BOX SEOUENTIAL NO. 100 MICROFILM NUMBER DEC 29 1989 .40PIR•tIJA, R IEWED BY /j . ?yl u "ATE APPROVED „ ? _ fp l DATE REJECTED •. ..:rmlurv of lhr ('omm::nxv.:Jlh N:pnn mnnl :?f Sl:n. MAILED BY DATE ..a:::.:.. rxhh ..I'1': nnvTh::nr.. 004 SICC AMOUNT I DOt S _ syg17 CERTIFY TO INPUT BY LOG IN LOG IN (REFILE) 0 REV. o L 8 I VERIFIED BY LOG OUT LOG DLIT (REFILE) 27 1 - I C OTHER M. BURR NEIM COMPANY. PHILADELPHIA - •.j98f1342 The following provisions shall regulate the status of the corporation as a close corporation: (a) (Strike out (i) or (ii) below, whichever is not applicable.) (i) XA?IIX,XI{,XI?FXFXdX>?XrxvX,XtYFxXMy?MrKFxrX,X?x?VtKr?Ys1CsX?(cXlxiYvXXfXFG,XaXt?j•XIYaXeX.XI?aXIXFXKdI?(r?E]<eKi?d(,ry )6$$VGd A691(skX X XXX-X-XXkXXX-Kt`(e*X%X M"MRRR Nlrl'TO F:%PRFD:", fi;) All of the issued shares of the corporation of all classes, exclusive of treasury shares, shall be held Of record by not more than the smaller of twenty-five "shareholders" within the meaning of Subchapter S of the Internal Revenue Code of 1954, as amended, or 10 persons. (b) All of the issued shares of all classes of the corporation shall be subject to one or more of the restrictions on transfer permitted by section 611.1 of the Business Corporation Low (15 P.S. 61611.1). (BCL 15M 9 ) XXX X X X X X X X "Kd6xlxlxlk Xd18p1(" X,)<sx,M X,X[K&Xikx x mx X,Xd6dtlKd6yaxr I)m X,X"4" XtJ616tXaXeXJldrYaX,x K X a6a(pxacx,l6x X KIPX7NX*kX X 1Q`X•!pX'XIM11" 21 (0ptional:;9KKp(tx WThe status of the corporation as a "close corporation" within the meaning of the Business Corpnralior. Law shall not be terminated without yth?eyaffirmative vote or written consent of (all Folders oft tJj(?{'dQ,XIAF*I( KrIX((rj(±X _-?IPIYAa1 shares of all classes of the corporation. (BCL 23L ) rRAI TUMN A'I' I.P M r-.rW. Ira lepN xXx"x;kxlxl"A.Mlxx"xhvukxlx*lxxE(4lbd4d xxxlxiuXXxxxxx XXXXX, xxxx,x,xxrXly x, ll;XXrXX•XX IFRA'mo , xIXdGxxX1?4X{>'{acixtX?rYIXUGx,?I'RwJfixlz,xd{c1GrXrX xfka(,a(•xr?(dlrx;zrxix xhY xr,XFxrx•xa?f,x xlibx xa( xi,>I'cx,XsXFxd(x(X•XvXi1(d(Ixx x 1corKlx z X X X 4XAXjXFK1AXX)XArXXW6"AXxXd Axxlx«XaUAxx X x x X X x x x XXXX.X,X&WF1FXFi(A"1G,Kd4FX,XM,XFi(AX x FRA(TION' KFx X MX XdE X A X)iIKX d(X66 X1,16 X ilp f X,XJ(lYe4 XtYpxliiX iGXik>x Xd6d4d(LX X XJ(eK?(Xa6 X01( XrXJ(dGd(XvXdHX XaX 3. Neither the corporation, nor any shareholder, shall make an offering of any of its shares of any class that would constitute a "public offering" within the meaning of the Securities Act of 1933 (15 U.S.C. 77a et seq) as amended. (BCL 2304(a)). 4. The business and affairs of the corporation shall be managed by or under the direction of the shareholders of the corporation rather than by or under the direction ofa board of directors; provided, however, the shareholders of the corporation shall be deemed to be directors for purposes of applying provisions of BCL Subpart IIB, including Sec. 1721(e) which permits the adoption of a by-law limiting the liabilities of directors. (BCL 2332(a)). 89 DEC 29 AM T. 28 M 6UBa RFIM COMPANY, PM4I•DFl PNM PA DEPT. OF STATE,,. fc) 3IIXFJFX?4d6#,?X XdGilX,XI?X,1(X.J6a1(iX,Xd'fX,X)XdrXrX XhSX:X XfXal6r xlXsX l(•xixhX?XFr?l1x1>E;,ra(?.x.XXx1X,XIX: X,?i'?iX(X'X X'd(Mtxoxd6*Xixxlx"X*Xrxixsx*0((K XlK11X X*"1 WK x x x EXHIBIT B FICTITIOUS NAME REGISTRATION Filed this - q ?s1? ? l 19_ APPLICANT'S ACCT NO. 90151046 Commonwealth of Pennsylvania DSCB: 15-55 (Rev. 10-74) Department of State Filing Fee: $40 CFN•Y8 Application for Conducting Business by a Corporation Under a Fictitious Name (Line for numbcrin I S's COMMONWEALTH OF PENN YLVANIA DEPARTMENT OF STATE CORPORATION BUREAU Secretary of the Commonwealth (Box for Certification) In compliance with the requirements of section 5 of the Fictitious Corporate Name Act, act of July 11, 1957 (P. L. 783) (15 P. S. § 55) the applicant corporation, desiring to register an assumed or fictitious name in the Office of the Secretary of the Commonwealth, hereby certifies: 1. The fictitious name under which the business is being or will be carried on is: DAMENTI'S RESTAURANT 2. A brief statement of the character or nature of the business is: TO OWN, MANAGE AND OPERATE A RESTAURANT SERVING FOOD AND LIQUOR. 3. The name of the applicant corporation: DAMENTI'S INCORPORATED - A STATUTORY CLOSE CORPORATION 4. Its state and date of incorporation: State: PENNSYLVANIA Date: JAN. 2, 1990 5. The location, including street and number, if any, of the principal place of business in this Commonwealth: R.D. #9 ROUTE 309, MOUNTAINTOP PA. 18707 (STREET) (CITY) (ZIP CODE) 6. The registered office of the applicant corporation in this Commonwealth: R D #9 ROUTE 309, MOUNTAINTOP PA. 18707 (STREET), (CITY) (ZIP CODE) 7. X(%JFiTLXIIIttxOfitKal¢?lfdb?S?EXtTtl(a3t1(dIrXJ4d(iXH(dEt%1(pYi3rJEXvY?(ilfsl(t?cK?de)EtXtYcYd?J6K?(tDElXofi(}XtYyYtK?(>tyt- x"xocflsxaxacal>koax X*lX(tX"Xix ):xtw"lxl€txtxtll x x (DATE) M. BURR KEIM COMPANY, PHILADELPHIA 90"511047 DSCB: 15-55 (Rev. 10-74)-2 8. The name and residence, including number and street, of any other entity, if any, in combination with which the applicant corporation seeks to conduct business under the fictitious name is or are: (NAME) (STREET) (CRY) (STATE) (ZIP CODE) IN TESTIMONY WHEREOF, all entities named within have signed this application or caused it to be signed by their Presidents or Vice Presidents and their corporate seals duly attested by their Secretaries or Trea- surers to be hereunto Mixed this Z day of MARCH HELEN E. MCDONALD KE r v? VIN McDONALD, ES WENT SECRETARY-TREASURER COMMONWEALTH OF PENNSYLVANIA COUNTYOF LUZERNE SS: Personally appeared before me, this. day of _ MARCH 19 90 KEVIN McDONALD, PRESIDENT, DAMENTI' who, being duly sworn according to law, deposes and says that the statements contained in the foregoing appli- cation are true. (SEAL) (NOTARY PUBLIC) / (SIGNATURE OF AFFIANT) My Commission.expires ) INSTRUCTIONS FOR COMPLETION OF FORM: A. Application must be signed in behalf of the applicant corporation and for all other entities listed with it in Paragraph 8. B. If the applicant is a foreign corporation, the applicant must, prior to the filing of an application, be duly authorized to carry on or conduct the business described in Paragraph 2 under the laws of this Common- wealth. If the authorization to do business was issued by the Insurance Department or if no certificate of authority is required by law, Paragraph 7 of the form should be modified accordingly. C. Where an individual is a member of a partnership or joint venture with one or more corporations under a fictitious name, Form DSCB: 15-55/54-28.1 (Application for conducting business under an Assumed or Fictitious Name-Individuals and Corporations) should be used. D. Forms and information related to filing in the office of the prothonotary of the proper county shall be secured by direct inquiry addressed to the prothonotary. E. All information shall be typed or printed, in black ink. F. Make check payable to: Secretary of the Commonwealth. (CASH WILL NOT BE ACCEPTED). G, Send application and check to: Corporation Bureau; Department of State, Room 308 North Office Bldg., Harrisburg, Pa. 17120. `r J '', ?, .„ SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. V. DAMENTI' S INCORPORATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1621 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this 6T" day of JUNE, 2005, after review of the briefs filed by the parties, as well as the authority cited therein, and having heard argument thereon, Defendant's Preliminary Objection Raising Improper Venue is DISMISSED. Edward E. Guido, J. ichard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 J Mechanicsburg, Pa. 17055 .1'nomas L. Kennedy, Esquire 200 West Chzpel Street Hazleton, Pa. 18201 ov :sld 1 :0I WV L- NnF 90OZ J,bVIONCHiOdd 3HI ?O 3OUU SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED MOTION OF DEFENDANT FOR LEAVE TO JOIN ADDITIONAL DEFENDANT Defendant, Damenti's Incorporated, by its undersigned counsel, moves this Court pursuant to Pa.R.C.P. 2253 for an Order allowing the joinder of LMcD, LLC trading as Ice 4 U 2 C as an Additional Defendant in this action and in support thereof alleges as follows: 1. Plaintiff instituted this action against the Defendant on March 29, 2005. Service was made on the Defendant on March 30, 2005. 2. Plaintiff seeks damages for breach of contract resulting from Plaintiff's providing services, labor, material and equipment in connection with public exhibitions of ice sculptures at Forty Fort, Pennsylvania in late 2004 and early 2005. 3. Defendant believes, and therefore avers, that the proposed Additional Defendant, LMcD, LLC trading as Ice 4 U 2 C, is solely liable to Plaintiff, and is the only party with whom the Plaintiff contracted with respect to the business venture identified in its Complaint. 1 4. On April 19, 2005, the Defendant filed a Preliminary Objection to the Complaint of the Plaintiff, raising improper venue pursuant to Pa.R.C.P. 1028(a)(1). On June 6, 2005, the Court dismissed Defendant's Preliminary Objection. 5. The action taken with respect to the Defendant's Preliminary Objection was argued before Judges Bailey and Guido, and the Order dismissing the Preliminary Objection was issued by The Honorable Edward E. Guido, for the Court. 6. Pa.R.C.P. 2253 sets forth the time for joinder of nonparties as Additional Defendants at sixty (60) days. That period has been construed by the Appellate Courts of the Commonwealth as having been tolled by the filing of Preliminary Objections by an original Defendant, and that a Complaint against an Additional Defendant may be filed within sixty (60) days after those Objections have been overruled and dismissed. 7. Defendant has filed this Motion promptly after the dismissal of its Preliminary Objection. 8. The allowance of the Motion will permit the liabilities and rights of the various parties to be heard and determined at the same time thereby avoiding a multiplicity of cases and will promote judicial economy. 2 9. The Defendant will be prejudiced by the denial of this Motion as it has a good and meritorious action against the proposed Additional Defendant. 10. The proposed Additional Defendant will not be prejudiced by the joinder in this matter since the facts which form the basis of liability against it are uncomplicated, and in most respects, have been averred by the Plaintiff in its Complaint. 11. No discovery has been taken to date, and the matter continues in the pleading stage. 12. Plaintiff will not be prejudiced by joinder of the proposed Additional Defendant. 12. Counsel for the Plaintiff has not concurred to the relief sought by this Motion. WHEREFORE, Defendant, Damenti's Incorporated, respectfully requests that this Court grant its Motion and permit the filing of a Complaint by it against the proposed Additional Defendant, LMcD, LLC trading as Ice 4 U 2 C. Respectfully submitted, KENNEDY AND LUCADAMO, P.C. Attorneys for Petitioner BY:L. Ke " d yv Tho as L. Kennedy, Esqui I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 3 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE OF MOTION AND NOW, this 17th day of June, 2005, I, THOMAS L. KENNEDY, ESQUIRE, of the law firm of KENNEDY AND LUCADAMO, P.C., hereby certify that on this day I served the foregoing Motion of Defendant for Leave to Join Additional Defendant by depositing a true and correct copy thereof in the United States mail, postage prepaid, at Hazleton, Pennsylvania, and addressed as follows: RICHARD C SNELBAKER ESQUIRE SNELBAKER AND BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17055-0318 Thomas L. Kennedy, Esqui r 0 :T 1] rn -- r.? t SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff V. DAMENTI' S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1621 CIVIL TERM ORDER OF COURT AND NOW, this 22"d day of June, 2005, upon consideration of Motion of Defendant for Leave To Join Additional Defendant, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Xchard C. Snelbaker, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Plaintiff ,ehomas L. Kennedy, Esq. 200 West Chapel Street Hazleton, PA 18201 Attorney for Defendant A f? :rc ,i I :;, a;:I ZZ `(T SOX Dil ?'J ??JLl;f V u??1 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff Vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. C/O RICHARD C SNELBAKER ESQUIRE SNELBAKER AND BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17055-0318 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or judgment may be entered against you. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's Incorporated BY: q??-w Thomas L. Kennedy, EsRui I.D. # 01666 200 West: Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT TO ORIGINAL COMPLAINT OF PLAINTIFF Defendant, Damenti's Incorporated, by and through its counsel answers the Complaint of the Plaintiff as follows: COUNT I - CONTRACT 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated. During the Fall of 2004, LMcD, LLC trading as Ice 4 U 2 C, a Pennsylvania limited liability company, originated the business venture consisting generally of the public exhibition of ice sculptures and other activities at 900 Rutter Avenue, Forty Fort, Pennsylvania. It is specifically denied that the Defendant had any ownership interest in the business venture. On the contrary, the Defendant, together with other individuals and 1 corporations, including WNEP-TV, acted as advertisers and sponsors of the event. 5. Denied as stated. It is specifically denied that the Defendant contacted the Plaintiff to provide refrigeration capabilities to support the promotion. On the contrary, Kevin McDonald, as a member of LMcD, LLC trading as Ice 4 U 2 C, contacted the Plaintiff. 6. Admitted in part and denied in part. It is admitted that the Plaintiff by its President, inspected the site on or about November 15, 2004. It is specifically denied that the Plaintiff advised the Defendant of its interest in the business. On the contrary, Plaintiff advised Kevin McDonald, a member of LMcD, LLC trading as Ice 4 U 2 C, of its interest in the business, and after learning that the budget for refrigeration services and equipment was Thirty Thousand and no/100 ($30,000.00) Dollars. 7. Denied as stated. It is admitted that on or about November 19, 2004, the Plaintiff initiated a telephone call to Kevin McDonald explaining Plaintiff's plan of proceeding. It is specifically denied that the Defendant orally accepted the proposal of the Plaintiff or directed the Plaintiff to proceed with the project. On the contrary, Kevin McDonald, on behalf of LMcD, LLC trading as Ice 4 U 2 C, orally accepted the proposal and directed the Defendant to proceed. By way 2 of further answer, the acceptance of Plaintiff's offer was based on Plaintiff's representation and assurance that the building where the ice sculptures were located could be kept at twenty (20) degrees Fahrenheit. 8. Denied as stated. It is specifically denied that Plaintiff provided materials, performed services and labor and provided leased equipment to the Defendant. On the contrary, Plaintiff's materials and services, labor and leased equipment were provided to LMcD, LLC trading as Ice 4 U 2, the owner of the project known as Ice 4 U 2 C. By way of further answer, the services, labor and equipment provided by Plaintiff were of poor quality, in breach of and not in conformity with Plaintiff's representation and assurances, and in certain material instances without authority, including but not limited to the following: (a) Plaintiff improperly calculated the requirements for the temperature control needed and installed a thirty (30) ton condenser approximately two (2) weeks prior to the ice carving show which was unable to cool the building below thirty-two (32) degrees (F) resulting in the commencement of melting of two hundred (200) tons of ice, the inability of carvers to complete work on sculptures prior to the scheduled opening, and a dangerous condition of water in 3 walkways causing one carver to fall and sustain a broken ankle; (b) Without authority from LMcD, LLC trading as Ice 4 U 2 C, with respect to cost, and solely in an attempt to remedy its failure described above, Plaintiff installed a temporary one hundred (100) ton condensing and cooling unit; (c) Plaintiff failed to maintain the one hundred (100) ton condensing /cooling unit, which shut down numerous times during the first twenty (20) days of the exhibition, requiring workmen of LMcD, LLC trading as Ice 4 U 2 C to follow Plaintiff's oral instructions to repair and restart the unit, and in one instance shutting down and failing during the night causing melting and deterioration of ice sculptures; (d) Plaintiff removed the one hundred (100) ton condensing unit three (3) weeks prior to the closing date of the exhibition, causing its early termination; (e) Plaintiff, on Invoice 4305, improperly charged Ice 4 U 2 C for installation of supports when the installation was done by Ice 4 U 2 C; 4 (f) Plaintiff, on Invoice 4366, improperly charged Ice 4 U 2 C for sixteen (16) one thousand (1,000) watt heaters, but installed only two (2); (g) Plaintiff, on Invoice 4384, improperly charged Ice 4 U 2 C for seven (7) drums of ethylene glycol, the majority of which were taken by Plaintiff to his place of business at the close of the exhibition; (h) Plaintiff, on Invoice 4404, improperly charged Ice 4 U 2 C a freight charge for a generator installed solely to attempt to remedy Plaintiff's continuing inability to cool the building as agreed; (i) Plaintiff, on Invoice 4384, improperly charged Ice 4 U 2 C for eight (8) Alco valves which, on information and belief, were not used for the rental equipment; (j) Plaintiff failed to provide necessary refrigeration services and equipment as agreed with Ice 4 U 2 C and in accordance with the budget parameters disclosed to it, and thereafter, improperly charged Ice 4 U 2 C the cost of remedying Plaintiff's own failure of performance; (k) The Plaintiff knew that its failure to provide temperatures cool enough to prevent ice from thawing would adversely affect the nature, quality and continued existence of ice 5 sculptures, and was unable to provide those consistent low temperatures despite continued complaints from persons affiliated with Ice 4 U 2 C; and (1) Plaintiff by its President, Forest Baker, Jr., admitted its shortcoming and failure to provide equipment and services necessary to cool the premises where Ice 4 U 2 C was conducted when it was required to install a one hundred (100) ton condensing unit well after the ice was delivered to the job location and after its substantial deterioration. 9. Denied as stated. It is specifically denied that the Defendant accepted work, materials, equipment and leased equipment as provided by the Plaintiff. On the contrary, any acceptance of work, materials, equipment and leased equipment was accepted by LMcD, LLC trading as Ice 4 U 2 C. By way of further answer, and on information and belief, defendant avers that Ice 4 U 2 C never accepted the failed performance of Plaintiff for the reasons set forth in Defendant's answer to paragraph 8, which is incorporated by reference. 10. Denied as stated. It is denied that the Plaintiff hand delivered and mailed invoices to the Defendant on the dates thereof. On the contrary, the invoices were delivered to Ice 4 U 2 C and 6 Damenti's Restaurant c/o Kevin McDonald and otherwise speak for themselves. 11. Denied as stated. It is specifically denied that the Defendant made payments on account of the charges contained on the invoices. On the contrary, all payments were made by Kevin McDonald acting on behalf of Ice 4 U 2 C. Defendant avers on information and belief, that Ice 4 U 2 C objected to Plaintiff's failure of performance and Plaintiff's unauthorized charges for its attempt to remedy that failure. 12. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide services. 13. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is 7 specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide equipment and materials. 14. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide leased equipment. 15. Denied as stated. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth that "Exhibit B" is a true and correct copy of Plaintiff's record of Defendant's account. By way of further answer, and on information and belief, it: is denied that Defendant made any payments on account, and that the payments shown on the account were made by Ice 4 U 2 C. 8 16. Admitted in part and denied in part. It is admitted that Plaintiff has demanded payment and that Defendant has refused to pay. It is denied that Defendant has any obligation to pay Plaintiff, and that, on the contrary, any obligation, which is specifically denied, would be that of Ice 4 U 2 C. WHEREFORE, Defendant, Damenti's Incorporated, respectfully request that this Court enter judgment in its favor and against Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. NEW MATTER 17. Defendant hereby incorporates paragraphs 1 through 16 above as if the same were fully set forth herein at length. 18. Plaintiff's agreement to provide materials, services, labor and leased equipment for the public exhibition of ice sculptures known as Ice 4 U 2 C at Forty Fort, Pennsylvania, was made with LMcD, LLC trading as Ice 4 U 2 C. 19. The fictitious name "Ice 4 U 2 C" is a registered fictitious name of LMcD, LLC. 20. On October 12, 2004, LMcD, LLC filed with the Pennsylvania Department of State /Corporation Bureau, a Certificate of Organization as a Domestic Limited Liability Company, listing its address at 870 9 North Hunter Highway, Mountaintop, Pennsylvania. This document is a public document and was available for inspection by the Plaintiff prior to the allegations set forth in its Complaint. 21. On October 22, 2004, LMcD, LLC trading as Ice 4 U 2 C filed with the Pennsylvania Department of State/Corporation Bureau an Application to Register its fictitious name of Ice 4 U 2 C, specifically stating its business activity of restaurant with liquor license and exhibitions of craft shows, and further stating its address at 870 North Hunter Highway in Mountaintop, Pennsylvania, indicating that the only entity interested in the business is LMcD, LLC. This document is a public document and was available for inspection by the Plaintiff prior to the allegations set forth in its Complaint. 22. Without in any way admitting that a contract between the Plaintiff and the Defendant existed, the Defendant avers, on information and belief, that the equipment and services provided by the Plaintiff were not provided by the Plaintiff under the terms of its oral contract and that the Plaintiff is in material breach of the contract which bars any claims it may have against the Defendant or Ice 4 U 2 C for reasons set forth in paragraph 8 of Defendant's Answers which are incorporated herein by reference. 10 23. Prior to the commencement of the public exhibition of ice sculptures, Ice 4 U 2 C applied for the transfer of a Pennsylvania Restaurant Liquor License from the Pennsylvania Liquor Control Board to sell malt beverages at its restaurant located at 900 Rutter Avenue, Forty Fort, Pennsylvania. Notice of that application of Ice 4 U 2 C was prominently posted at the premises on November 15, 2004 and available for inspection by the Plaintiff at all times prior to Plaintiff's commencement of work at the premises. 24. Plaintiff's failure to provide services and equipment as represented and assured by it to enable the public exhibition of ice sculptures without melting or thawing, bars Plaintiff's action and is a defense thereto. 25. No contract existed between the Plaintiff and the Defendant. WHEREFORE, Defendant, Damenti's Restaurant, respectfully requests that this Court enter judgment in its favor and against the Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. COUNTERCLAIM 1. Counterclaim Plaintiff is a Pennsylvania business corporation with principal place of business at 870 North Hunter Highway, Mountaintop, Pennsylvania, 18707. 11 2. Counterclaim Defendant is a Pennsylvania business corporation having its principal place of business at 406 Darla Road, Mechanicsburg, Pennsylvania. 3. In the event that Counterclaim Plaintiff is found to have entered into a contract with Counterclaim Defendant for materials, services, labor and leased equipment in connection with the public exhibition of ice sculptures known as Ice 4 U 2 C at Forty Fort, Pennsylvania, which is specifically denied by the Counterclaim Plaintiff, then and only in that event, and in the alternative, Counterclaim Defendant is liable to Counterclaim Plaintiff in the amount of One Hundred One Thousand and no/100 ($101,000.00) Dollars as a result of Counterclaim Defendant's failure to perform its contract in a good and workmanlike manner, as represented and assured and specifically as set forth below: (a) Plaintiff improperly calculated the requirements for the temperature control needed and installed a thirty (30) ton condenser approximately two (2) weeks prior to the ice carving show which was unable to cool the building below thirty-two (32) degrees (F) resulting in the commencement of melting of two hundred (200) tons of ice, the inability of carvers to complete work on sculptures prior to the scheduled opening, and a dangerous condition of water in 12 walkways causing one carver to fall and sustain a broken ankle; (b) Without authority from LMcD, LLC trading as Ice 4 U 2 C, with respect to cost, and solely in an attempt to remedy its failure described above, Plaintiff installed a temporary one hundred (100) ton condensing unit; (c) Counterclaim Defendant failed to maintain the one hundred (100) ton condensing/cooling unit, which shut down numerous times during the first twenty (20) days of the exhibition, requiring workmen of LMcD, LLC trading as Ice 4 U 2 C to follow Counterclaim Defendant's oral instructions to repair and restart the unit, and in one instance shutting down and failing during the night causing melting and deterioration of ice sculptures; (d) Counterclaim Defendant removed the one hundred (100) ton condensing/cooling unit three (3) weeks prior to the expected closing date of the exhibition, causing its early termination; (e) Counterclaim Defendant failed to provide necessary refrigeration services and equipment as agreed with Ice 4 U 2 C and in accordance with the budget parameters disclosed 13 to it, and thereafter, improperly charged Ice 4 U 2 C the alleged cost of remedying it's own failure of performance; (k) The Counterclaim Defendant knew that its failure to provide temperatures cool enough to prevent ice from thawing would adversely affect the nature, quality and continued existence of ice sculptures, and was unable to provide those consistent low temperatures despite continued complaints from persons affiliated with Ice 4 U 2 C; and (1) Counterclaim Defendant by its President, Forest Baker, Jr., admitted its shortcoming and failure to provide equipment and services necessary to cool the premises where Ice 4 U 2 C was conducted when it was required to install a one hundred (100) ton condensing/ cooling unit well after the ice was delivered to the job location and after its substantial deterioration. 4. Solely as a result of the Counterclaim Defendant's failure of performance as set forth above, the public exhibition of Ice 4 U 2 C was forced to close its exhibition three (3) weeks prior to its scheduled termination, resulting in the loss of net receipts of Seventy-five Thousand and no/100 ($75,000.00) Dollars from the sale of tickets, the sale of food and beverages and incidental items at its public exhibition. 14 5. Solely as a result of Counterclaim Defendant's failure of performance as set forth above, losses were sustained in the amount of Six Thousand and no/100 ($6,000.00) Dollars for additional expenses to house, feed and pay ice carvers for an additional three (3) days when no work could be performed on melting ice. 6. Solely as a result of Counterclaim Defendant's failure of performance, Counterclaim Plaintiff suffered the loss of Twenty Thousand and no/100 ($20,000.00) Dollars in payment to Counterclaim Defendant for services improperly performed. 7. Counterclaim Plaintiff is entitled to set-off against Counterclaim Defendant any damages for which it is held liable in Plaintiff's claim to the extent of Counterclaim Plaintiff's damages in this Counterclaim. WHEREFORE, Counterclaim Plaintiff demands that judgment be entered in its favor and against the Counterclaim Defendant in the amount of One Hundred One Thousand and no/100 ($101,000.00) Dollars together with interest and costs of suit in the event that Counterclaim Defendant is adjudged to have entered into a contract with Counterclaim Plaintiff. It is further demanded by Counterclaim Defendant that, in the event of a finding of a contract between Counterclaim Plaintiff and Counterclaim Defendant, and in the event that any judgment against Counterclaim Plaintiff be entered against 15 it on Plaintiff's cause of action, that Counterclaim Plaintiff's recovery in this Counterclaim be set off against any judgment in favor of Plaintiff and against Defendant on Plaintiff's Complaint. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant and Counterclaim Plaintiff BY: 4 'r,?4 Tho as L. Kennedy, Esqu r I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 16 V E R I F I C A T I O N I, KEVIN McDONALD, hereby certify that I am President of Damenti's Incorporated, and that the facts set forth in the foregoing Answer of Defendant to Original Complaint of Plaintiff, New Matter and Counterclaim, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: VIN MCDONALD r 17 r-> f' : '? ? -tt ,?i ._ t ..--{{ "T -Pt . .. _ SV1?? t T'J _,J '?. Ii GG) -'}? -r? ?i.? , -} ? ? _ L{ t .: SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, VS. DAMENTFS INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Damenti's Incorporated (Defendant) and Thomas L. Kennedy, Esquire (Attorney for Defendant) You are hereby notified to file a written response to the enclosed Counterclaim Defendant's New Matter within twenty (20) days from service hereof or a judgment may be entered against you. SNELBAKER & BRENNEMAN, P.C. By - Ric and C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717)697-852.8 Attorneys for Plaintiff and Counterclaim Defendant LAW OFFICES SNELBAKER & :RENNEMAN, F.C. Dated: July I9 , 2005 VNA AIR CONDITIONING TION SERVICES, INC., Plaintiff, vs. INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER, REPLY TO COUNTERCLAIM AND NEW MATTER AND NOW, comes Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc., its attorneys, Snelbaker & Brenneman, P.C., and responds to Defendant's New Matter and Counterclaim as follows: REPLY TO NEW MATTER 17. Paragraph 17 of Defendant's New Matter should be stricken as improperly requiring a reply to an Answer which does not constitute pleading in compliance with the Pennsylvania Rules of Civil Procedure. To the extent a response would be permissible, the allegations of Defendant's Answer are denied as if set forth in this paragraph seriatim to the extent the same are contrary to any averment in the Complaint. By way of further reply, paragraph 22 of Plaintiff s Reply to New Matter and all averments in Counterclaim Defendant's Reply to New Matter are incorporated by reference herein in their entirety. 18. It is denied that the subject agreement was made by Plaintiff with LMcD, LLC, LAW OFFICES SNELBAKER & RENNEMAN, P.C. trading as Ice 4 U 2 C. On the contrary, Plaintiffs agreement was made with Defendant, Damenti's Incorporated, as averred in Plaintiffs Complaint filed in this action, the averments of said Complaint being incorporated herein by reference thereto. 19. Admitted. 20. The averments relating to facts of the filings are admitted. It is denied that had any obligation to inspect said records. By way of further response, it is averred that allegations are irrelevant and impertinent to this action since Plaintiff contracted with 's Incorporated, the Defendant herein, as averred in Plaintiff's Complaint, and did not with LMcD, LLC, or Ice 4 U 2 C. 21. The averments relating to facts of the filings are admitted. It is denied that Plaintiff had any obligation to inspect said records. By way of further response, it is averred that the allegations are irrelevant and impertinent to this action since Plaintiff contracted with Damenti's Incorporated, the Defendant herein, as averred. in Plaintiff s Complaint, and did not contract with LMcD, LLC, or Ice 4 U 2 C. 22. The content of paragraph 22 is a series of conclusions of law to which no response is required and, therefore, is/are deemed to be denied. With respect to any portion of said paragraph which properly pleads averments of fact, the same are denied for all the reasons set forth in Plaintiffs Complaint and in the Reply to Counterclaim, all of which are incorporated herein by reference thereto. Inasmuch as the references to paragraph 8 of Defendant's Answer contain some of the same averments as in the Counterclaim (to wit: $ 3 (a), (b), (c), (d), (e), (k) and (1)), said averments are denied for the reasons set forth in the Reply to Counterclaim hereinbelow. Plaintiff responds to the incorporated averments in ¶ 8 (e), (f), (g), (h) and (i) as follows: 8.(e). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U LAW OFFICES SNELBAKER & :RENNEMAN, P.C. 2 C, for installation of supports installed by others. On the contrary, Plaintiff was required to dismantle the supports constructed by others in order to install the 5-ton condenser unit, and then reinstall the supports as billed to Defendant on invoice #4305. 8.(f). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U 2 C, for 16 heaters but only installed 2. On the contrary, Plaintiff furnished and installed 16 heaters - 2 on each of the 8 existing evaporators as billed to Defendant 8.(g). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U 2 C, for 7 drums of ethylene glycol and improperly took a "majority" of them to its place of business. On the contrary, Plaintiff furnished and installed the 7 drums of ethylene glycol during the course of the use of the cooling equipment which were properly billed to Defendant. Plaintiff removed the used and contaminated ethylene glycol at the close of the exhibition in order to avoid liability for improper disposition of hazardous material or creating environmental contamination. 8.(h). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U 2 C, for freight charges as alleged. On the contrary, the freight charge was made to Defendant and related to the installation and use of the 100-ton cooling unit as authorized by Defendant as averred in paragraph 3.(b) of Reply to Counterclaim, all of which is incorporated herein by reference thereto. The freight charge was belatedly billed by the vendor/lessor, but was nevertheless a portion of the cost of providing the 100-ton equipment as approved. 8.(i). It is denied that Plaintiff improperly charged anyone for 8 Alco valves LAW OFFICES SNELSAKER 8C (RENNEMAN, P.C. which were not used in Defendant's project. On the contrary, it is averred that the 8 Alco valves were procured and installed by Plaintiff on the 8 existing evaporators and were not billed by Plaintiff as having been installed on the "rental equipment." 23. After reasonable investigation, Plaintiff is without information or knowledge sufficient to form a belief as to the truth of the averments in paragraph 23 and, therefore, they are to be denied pursuant to Pa. R.C.P. 1029 (c), proof of which is demanded at the trial of case, if relevant. 24. The content of paragraph 24 is a series of conclusions of law to which no is required and, therefore, is/are deemed to be denied. By way of further reply, it is that Plaintiff failed to provide any services and equipment agreed to be provided. With to any other portions of said paragraph which properly pleads averments of fact, the same denied for all the reasons set forth in Plaintiff's Complaint and in the Reply to Counterclaim, all of which are incorporated herein by reference thereto. 25. The content of paragraph 25 is a conclusion of law to which no response is required and, therefore, is deemed to be denied. With respect to any portion of said paragraph which properly pleads averments of fact, the same are denied for all the reasons set forth in Plaintiffs Complaint and in the Reply to Counterclaim, all of which are incorporated herein by reference thereto. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant as requested in Plaintiffs Complaint. REPLY TO COUNTERCLAIM Admitted. 2. Admitted. It is specifically denied that Counterclaim Defendant failed in any way to perform LAW OFFICES SNELBAKER & IRENNEMAN, P.C. its contract in a good and workmanlike manner or that it is in any way liable to Counterclaim Plaintiff in any amount of money. On the contrary, Counterclaim Defendant performed its contract in a good and workmanlike manner and is entitled to judgment against Counterclaim for the reasons and averments as set forth in the Complaint filed herein and incorporated by reference thereto. Counterclaim Defendant further answers the subparagraphs to paragraph 3 as (a) It is denied that Counterclaim Defendant (Plaintiff) improperly calculated the requirements for the temperature control. On the contrary, Counterclaim Defendant properly computed the requirements based upon the manufacturer's specifications for the use of existing evaporators as provided by Counterclaim Plaintiff. For the same reasons, the 30-ton condenser was properly sized and installed to meet the conditions of Counterclaim Defendant's contractual undertaking. It is denied that the sculpturing was not completed prior to the scheduled opening or that Plaintiff (Counterclaim Defendant) caused any delay. On the contrary, the sculptures were completed and the show opened on the announced date. It is denied that any dangerous conditions occurred with regard to walkways as the result of Counterclaim Defendant's work or materials. On the contrary, water in the walkways occurred from the melting of ice shavings resulting from the carving of sculptures, a condition reasonably foreseeable under the conditions described below. After reasonable investigation, Counterclaim Defendant is without LAW OFFICES SNELBAKER & IRENNEMAN, P.C. knowledge or information sufficient to form a belief as to the truth of the averment of a carver's fall and injury and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029 (c), proof of which is demanded at trial, if relevant. It is denied that the cooling system implemented by Plaintiff (Counterclaim Defendant) was unable to cool the building below 32°. On the contrary, said system as designed and installed was fully capable of so cooling the structure. By way of further response, it is averred that any alleged "melting" was the result of matters beyond Plaintiff's (Counterclaim Defendant's) control, including interference with temperature controls by third parties, above-freezing outdoor temperatures, uncontrolled introduction of intrusive heat from such sources as open exterior doors, interior use of automotive equipment (e.g. forklifts) with engine and exhaust heat, and high wattage electrical lighting. (b) It is admitted that Plaintiff's (Counterclaim Defendant's) installation of a LAW OFFICES SNELBAKER & IRENNEMAN, P.C. 100-ton cooling unit was done without authority from LMcD, trading as lee 4 U 2 C, and it is more specifically denied that Plaintiff (Counterclaim Defendant) was required to obtain authority from said LMcD, trading as Ice 4 U 2 C, since Plaintiffs (Counterclaim Defendant's) contract was with Damenti's Incorporated, the Counterclaim Plaintiff herein. It is further denied that the installation of such ancillary equipment was the result of Plaintiffs (Counterclaim Defendant's) failure to calculate the cooling requirements. On the contrary, installation of the additional equipment was necessary because of the matters beyond Plaintiff s (Counterclaim Defendant's) control as averred in paragraph 3(a) above which are incorporated herein by reference thereto. By way of further response, it is averred that the procurement and installation of such equipment was done only after consultation with Kevin McDonald who agreed to the additional cost and offered to provide advance funding therefor. (c) It is denied that Counterclaim Defendant failed to maintain the 100-ton cooling equipment and it is more specifically denied that Counterclaim Defendant had any responsibility to maintain the equipment on a continuous operating basis, such as providing fuel to operate the diesel powered generator. On the contrary, the operating responsibility belonged to Counterclaim Plaintiff who failed on occasions to provide the necessary diesel fuel, thereby shutting down the equipment. In addition, persons unauthorized by Counterclaim Defendant attempted unsuccessfully to computerize the controls for this and other equipment, resulting in malfunctions of the system installed by Counterclaim Defendant. It is further denied that the equipment required repair. It is further denied that the alleged nighttime event was the result of any matter attributable to Counterclaim Defendant. On the contrary, the event was caused by someone other than Counterclaim Defendant improperly turning-off the original 30-ton cooling equipment contrary to Counterclaim Defendant's operating instructions. (d) Denied. On the contrary, Counterclaim Defendant removed the 100-ton cooling unit on February 22, 2005, being the day after the closing of the ice sculpture show, with Counterclaim Plaintiff's full knowledge! and understanding. (e) For all the reasons set forth hereinabove and in Plaintiff's Complaint, it is LAW OFFICES SNELBAKER & RENNEMAN, P.C. denied (1) that Counterclaim Defendant agreed or contracted with Ice 4 U 2 C, (2) that it failed to provide the required refrigeration services and equipment as contracted and (3) that it charged Ice 4 U 2 C for anything. It is further denied that "budget parameters" were disclosed to Counterclaim Defendant and that Counterclaim Defendant was limited to any such undisclosed "parameters". On the contrary, it is averred that Counterclaim Defendant's contract with Defendant Damenti's Incorporated (as averred in the Complaint) was on a time and materials basis, without reference to or limited by "budget parameters". (k) It is denied that Counterclaim Defendant was unable to provide consistent low temperatures and it is further denied that there were "continued complaints from persons affiliated with Ice 4 U 2 U. On the contrary, Counterclaim Defendant provided the required equipment in accordance with its contract with Defendant Damenti's Incorporated, and that any deviation in temperature was due to reasons beyond its control as averred in paragraphs 3(a) and 3 (b) hereinabove and incorporated herein by reference thereto. (1) It is denied that any admission was made as alleged. On the contrary, Counterclaim Defendant's president, Forest Baker, Jr., explained in the pre-contract negotiations with Counterclaim Plaintiff s principals that because of the aged existing equipment, the uncertainty of the insulating integrity of the building and possible other unknown factors, no fixed price or limitation on cost was possible and, therefore, Counterclaim Defendant could only proceed on a time and materials basis. Accordingly, when conditions developed necessitating the use of the ancillary 100-ton unit, such implementation was a further step in the time and materials terms, not an admission of deficiency by Counterclaim Defendant, but a continuing performance of Counterclaim Defendant's contractual undertaking. 4. For all the reasons averred hereinabove, it is denied that Counterclaim Defendant LAW OFFICES SNELSAKER & BRENNEMAN, P.C. failed to perform its contractual obligations. It is further denied that the Ice 4 U 2 C exhibition closed three weeks earlier than scheduled and that any monetary loss was sustained by reason of alleged early closing. On the contrary, the exhibition was advertised to close on February 1, 2005, and did so according to the published schedule. 5. For all the reasons set forth hereinabove, it is denied that Counterclaim Defendant to perform its contractual undertakings or that any losses were incurred because of any failure of performance. After reasonable investigation, Counterclaim Defendant is information or knowledge sufficient to form a belief as to truth of the remainder of the in paragraph 5 and, therefore, the same are deemed to be denied pursuant to Pa. 1029 (c), proof of which is demanded at the trial, if relevant. The averments in paragraph 6 should be stricken for insufficient specificity and legal insufficiency. Alternatively, for all the reasons set forth hereinabove, it is denied that Counterclaim Defendant improperly performed services or that Counterclaim Plaintiff suffered any loss for any alleged services improperly performed. The content of paragraph 7 is a series of conclusions of law to which no response is required and, therefore, the same are deemed to be denied. For all the reasons set forth hereinabove, it is denied that Counterclaim Plaintiff has suffered any damages at the fault of Counterclaim Defendant, and the claim for set-off is unwarranted and denied. WHEREFORE, Counterclaim Defendant requests the Court to dismiss Counterclaim Plaintiff's Counterclaim and to enter judgment on the Counterclaim in favor of Counterclaim Defendant and against Counterclaim Plaintiff. LAW OFFICES SNELBAKER & IRENNEMAN, P.C. NEW MATTER By way of further response and defense to Counterclaim Plaintiff's Counterclaim, rclaim Defendant avers as follows: 8. Counterclaim Plaintiff's Counterclaim faiils to state any cause or causes of action which the relief sought may be granted. 9. Counterclaim Plaintiff, Damenti's Incorporated, has denied entering into any contractual relationship with Counterclaim Defendant. 10. Counterclaim Plaintiff, Damenti's Incorporated, having denied any contractual with Counterclaim Defendant, lacks standing; to claim damages against Counterclaim Defendant in this counterclaim action and/or is not the real party in interest capable of maintaining any claim for damages against Counterclaim Defendant based upon the allegations set forth in the Counterclaim. 11. Any damages claimed by Counterclaim Defendant in its Counterclaim are beyond the reasonable consideration or contemplation of the parties. 12. If Counterclaim Plaintiff sustained damages from the malfunction of refrigeration equipment (which Counterclaim Defendant denies), such damages were caused by the action of third persons seeking to control such equipment without Counterclaim Defendant's consent and beyond its control. 13. Any deterioration of ice after Counterclaim Defendant's installation of the LAW OFFICES SNELBAKER & IRENNEMAN. P.C. refrigeration equipment was caused by factors beyond Counterclaim Defendant's control, including, but not limited to: (a) Unanticipated high outdoor temperatures. (b) Open exterior doors admitting warmer outdoor air, 10 (c) Use of motorized equipment inside the project building emitting engine and exhaust heat. (d) Use of high wattage electric lighting. (e) Shut down of refrigeration equipment for lack of engine fuel to be provided by persons other than Counterclaim Defendant. (f) Shutdown of refrigeration equipment by third persons. (g) Malfunctions caused by persons unauthorized by Counterclaim Defendant in attempting unsuccessfully to computerize the controls of the refrigeration equipment. 14. Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's Answer, ew Matter and Counterclaim. 15. Counterclaim Plaintiff made no complaint to Counterclaim Defendant as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiffs Answer, New Matter and Counterclaim. 16. The ice sculpture exhibition sponsored by Counterclaim Plaintiff was announced and advertised to be open for business between January 21, 2005 and February 21, 2005. 17. Counterclaim Plaintiff caused a sizeable payment, to wit: $10,000.00, to be paid LAW OFFICES SNELBAKER & BRENNEMAN, P.C. on account of Counterclaim Defendant's services on or about February 13, 2005, being approximately a week prior to the closing of the exhibition, said payment being made without any expression of dissatisfaction as to Counterclaim Defendant's work, materials, equipment, service or billings. I1 WHEREFORE, Counterclaim Defendant requests the Court to dismiss Counterclaim Plaintiff's Counterclaim and to enter judgment on the Counterclaim in favor of Counterclaim Defendant and against Counterclaim Plaintiff. SNELBA & 13RENNEMAN, P.C. B Y ichard C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone(717)697-8568 Attorneys for Plaintiff LAW OFFICES SNELEIAKER & 3RENNEMAN, P,C. 12 VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Susquehanna Air Conditioning Refrigeration Services, Inc., the Plaintiff and Counterclaim Defendant in the foregoing Reply to New Matter, Reply to Counterclaim and New Matter; that I am authorized to make this verification on behalf of the Plaintiff and Counterclaim Defendant; that the facts contained in said Reply to New Matter, Reply to Counterclaim and New Matter within my personal knowledge are true and correct; that the facts contained in said Reply to New Matter, Reply to Counterclaim and New Matter not within my personal knowledge, I believe them to be true and correct based upon the information of others; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unworn falsification to authorities. Forest R. Baker, Jr. Dated: July /9 , 2005 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiff's Reply to New Matter, Reply to Counterclaim and New Matter by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Richard C. Snelbaker, Esquire Snelbaker & Brenneman,P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff July 19, 2005 LAW OFFICES SNELBAKER & 2ENNEMAN, P.C. {'\ <?%i c> -rl C.' ? . ? , _T ._ _. -? ? ??- ?. ? i --` r:? MINA AIR CONDITIONING TION SERVICES, INC., Plaintiff, VS. S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE IN OPPOSITION TO MOTION OF DEFENDANT FOR LEAVE TO JOIN ADDITIONAL DEFENDANT AND RULE TO SHOW CAUSE AND NOW, comes the Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc., by its attorneys, Snelbaker & Brenneman, P.C., and responds to Motion of Defendant for Leave to Join Additional Defendant and the Court's Rule to Show Cause issued June 22, 2005, as follows: Plaintiff opposes said Motion on the substantive grounds that the party proposed to be joined (LMcD,LLC, trading as "Ice 4 U 2 C") has :no legal interest in these proceedings for all the reasons set forth in Plaintiff's Complaint, Plainti?rs Reply to Defendant's New Matter and Counterclaim and in Plaintiff's New Matter to Defendant's Counterclaim, all heretofore filed and incorporated herein by reference thereto. 2. Defendant is prevented by Section 362 of the United States Bankruptcy Code (I I LAW OFFICES SNELBAKER & BRENNEMAN, P.C. U.S.C. § 362) from joining LMcD, LLC, as a party in the present proceedings, the said LMcD, LLC, a/k/a "Ice 4 U 2 C", having filed its Chapter 7 bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania, as docketed to case Number 5:05-bk-54237-JJT on July 28, 2005, as indicated on the attached Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors and Deadlines as served on the undersigned. WHEREFORE, the Plaintiff requests your Honorable Court to dismiss Defendant's and deny the relief sought. 'P.C. By Richard C. Snelbaker, Esquire Snelbaker &. Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff. -2- LAW OFMCES SNELBAKER & BRENNEMAN, P.C. tt91f A chapter 7 bankruptcy case concerning the debtor(s) listed below was filed on 7/28/05. r may be a creditor of the debtor. This notice lists important deadlines. You may want to consult an attorney to protect your rights. documents filed in the case may be inspected at the bankruptcy clerk's office at the address listed below. Debtor(s) (name(s) used by the debtor(s) in the last 6 years, including married, maiden, trade, and address): Number. aney for Debtor(s) (name and address): Cony J Lucadamo nedy and Lucadamo PC West Chapel Streit leton, PA 18201 Date: 09/14/2005 Secunty/Taz:payer ID Nos.: krnptcy Trustee (name and address): ert N. Opel, 111' Trustee) Third Avenue, Suite 316 ;ston, PA 18704-5816 phone number: 570 288-7800 Time: 10:00 AM Courtroom #3. Max Rosenn j The filing of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtor's property. if you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized. U.S. Bankruptcy Court Clerk of the Bankruptcy Court: 274 Max Rosenn U.S. Courthouse 197 South Main Street Arlene Byers Wilkes-Barre, PA 18701 Address of the Bankruptcy Clerk's 0Mce: UNITED STATES BANKRUPTCY COURT 8:00 AM - 5:00 PM p in, EXPLANATIONS FORM 119B (12/031 Filing of Chapter 7 A bankruptcy case under chapter 7 of the Bankruptcy Code (title 11, United States Code) has been filed in this court Bankruptcy Case by or against the debtor(s) listed on the front aide, and an order for relief has been entered. Creditors May Not Prohibited collection actions are listed in Bankruptcy Code §362. Common examples of prohibited actions include Take Certain Actions contacting the debtor by telephone, mail or otherwise to demand repayment taking actions to collect money or obtain property from the debtor, repossessing; the debtors property; starting or c?tinuln lawsuits at foreclosures. Meeting of Creditors A meeting of creditors is scheduled for the date, time and location listed on the front side. The debtor's represenATdre must be present at the meeting to be quesNowed under oath by the busts ad by creditors. Creditors are welcome to attend, but are not required to do so. The meeting may be continued and concluded at a later date without further notice. Do Not File a Proof of There does not appear to be any property available to the trustee to pay creditors. You therefore shoubi not file a Claim at This Time proof of claim at this dne. If it later appears that assets are available to pay creditors, you will be sent another notice telling you that you may file a roof of claim, and telling you the deadline for film our proof of claim. Bankruptcy Clerk's Any paper that you file in this bankruptcy case should be filed at the bankruptcy clerk's office at the address listed Office on the front side. You may inspect all papers filed, including the list of the debtor's prop" and debts. Legal Advice The staff of the bankruptcy clerk's office cannot give legal advice. You may want to consult an attorney to protect your rights. -- Refer to Other Side for Important Deadlines and Notices -- RAPID DATA ACCESS: We encourage you to register with our Public Access to Court Electronic Records System "PACER") b visiting the PACER Home Page at http://pacer.psc.uscourts.gov/. 1HEQHjANLDLQjjM For security reasons, photo identification may be required to attend this meeting. COPY REQUESTS: To obtain copies of documents, send a written request to the Clerk's Office as listed on this notice, „<,,n, *xi7nRnsiL 14n19 J eL N ° ° 4 c r , -o ppa° WAN°? LLW? ? N N g ? Wl=(7N6 RaN6p?y F., so$a N W o ? N W W O ? YAW a ? wQzN Q `off Z4? OD 0) ¢? U mV c G ?Qy?4 x ?- 4?Wmo c ft N a o N g ? ?yy.? m m2 ? i++ 4 sc W c ? A 'A W oC? N Q F a a 9i ? r y ? tj w 3 6 D ? U. 0 5 ? ? CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiff s Response in Opposition To Motion Of Defendant For Leave to Join Additional Defendant And Rule to Show Cause by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Richazd C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff Dated: August 26, 2005 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. N CJ ?? o T crs c, Mp y: ;_, _ ct rn `-i o { SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA, CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM Defendant JURY TRIAL DEMANDED COUNTERCLAIM PLAINTIFF'S REPLY TO NEW MATTER OF COUNTERCLAIM DEFENDANT Counterclaim Plaintiff makes the following Reply to New Matter of Counterclaim Defendant as follows: 8. The allegations contained in paragraph 8 constitute conclusions of law to which no responsive pleading is required. 9. It is admitted that Counterclaim Plaintiff Damenti's Incorporated has denied entering into any contractual. relationship with Counterclaim Defendant. By way of further answer, Counterclaim Plaintiff has pleaded, in the alternative, that if it is found to have entered into a contract with Counterclaim Defendant, that in that event, and only in that event, is Counterclaim Defendant liable to it. 10. The allegations contained in paragraph 10 constitute conclusions of law to which no responsive pleading is required. 11. The allegations contained in paragraph ].l constitute conclusions of law to which no responsive pleading is required. 1 12. The allegations contained in paragraph 12 constitute conclusions of law to which no responsive pleading is required. By way of further answer, and to the extent the allegations contained in paragraph 12 constitute factual averments, those averments are denied for the reason that Counterclaim Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of those allegations. 13. It is specifically denied that the deterioration of ice after Counterclaim Defendant's installation of refrigeration equipment was caused by factors beyond its control. On the contrary, Counterclaim Plaintiff answers the subparagraphs to paragraph 13 as follows: (a) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. High outdoor temperatures are and were reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures 2 to reduce the impact of unanticipated high outdoor temperatures; and (b) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Open exterior doors are and were reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact of open exterior doors emitting warmer outdoor air; and (c) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Use of motorized equipment was reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact 3 of the use of motorized equipment inside the project building emitting engine and exhaust heat; and (d) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Use of electric lighting was reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact of use of high wattage electric lighting; and (e) Admitted in part and denied in part. It is admitted that the equipment shut down for lack of engine fuel, because the gauge mistakenly indicated fuel in the tank. It is denied that sufficient fuel was not present to operate the equipment. By way of further answer, Counterclaim Plaintiff avers that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of those allegations which are therefore denied; and 4 (f) The allegations in subparagraph (f) are denied for the reason that,after reasonable investigation, Counterclaim Plaintiff is without knowledge or information sufficient to form a belief as to the truth thereof; and (g) The allegations contained in subparagraph (g) are denied by Counterclaim Defendant for the reason that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of those allegations. 14. It is denied that Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's pleading. On the contrary, representatives of LMcD, LCC trading as Ice 4 U 2 C, advised Counterclaim Defendant that, despite its installation of equipment some two (2) weeks prior the opening date of the ice exhibition, the area to be cooled was approximately thirty-two (32) degrees, nowhere close to Counterclaim Defendant's predicted temperature of twenty (20) degrees. As a result of that complaint, Counterclaim Defendant opted to bring in temporary support equipment, which failed to work continuously throughout the exhibition, shutting down numerous times during its first twenty (20) days of operation, and necessitating regular emergency calls from 5 Forty Fort to Counterclaim Defendant's place of business in Mechanicsburg. 15. It is denied that Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's pleading. On the contrary, representatives of LMcD, LCC trading as Ice 4 U 2 C, advised Counterclaim Defendant that, despite its installation of equipment some two (2) weeks prior the opening date of the ice exhibition, the area to be cooled was approximately thirty-two (32) degrees, nowhere close to Counterclaim Defendant's predicted temperature of twenty (20) degrees. As a result of that complaint, Counterclaim Defendant opted to bring in temporary support equipment, which failed to work continuously throughout the exhibition, shutting down numerous times during its first twenty (20) days of operation, and necessitating regular emergency calls from Forty Fort to Counterclaim Defendant's place of business in Mechanicsburg. The complaints made to Counterclaim Defendant were made to its President, Forest R. Baker, Jr. 16. Admitted. 17. Admitted in part and denied in part. It is admitted that a payment in the amount of Ten Thousand and no/100 ($10,000.00) Dollars was made to Counterclaim Defendant on February 13, 2005. It is denied that the payment was made by the Counterclaim Plaintiff and on 6 the contrary, it is averred that the payment was made by representatives of LMcD, LLC trading as Ice 4 U 2 C. By way of further answer, the payment made was done so in good faith, and with the assurance that the Counterclaim Defendant would continue to provide services in cooling as originally agreed, and within the budget of Thirty Thousand and no/100 ($30,000.00) Dollars. It is denied that the payment was made without expression of dissatisfaction as to Counterclaim Defendant's work, materials and equipment. On the contrary, representatives of LMcD, LLC trading as Ice 4 U 2 C reminded the Counterclaim Defendant's President, Forest R. Baker, Jr. of the shortcomings of the performance of Counterclaim Defendant at the time of payment. WHEREFORE, Counterclaim Plaintiff demands that judgment be entered in its favor and against the Counterclaim Defendant. KENNEDY AND LUCADAMO, P.C. BY: Thomas L. Kennedy, Esquire I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 7 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff Vs. DAMENTI'S INCORPORATED, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM Defendant JURY TRIAL DEMANDED V E R I F I C A T I O N I, KEVIN McDONALD, hereby certify that I am President of Damenti's Incorporated, Counterclaim Plaintiff, and that the facts set forth in the foregoing Counterclaim Plaintiff's Reply to New Matter of Counterclaim Defendant, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: ?- K VIN McDONALD 8 CV ` L2 t? f7 F. L . cv ?- \Hchacl G. Olevar. Esq. Attorney I.D. 78264 OLLYAR BRADY P.C. 1261 N. Church Street Itazleton, PA 18202 570-455-6800 'I el 570-455-6900 fax AttomeN for Defendant Damenti's Inc. SUSQUEHANNA AIR CONDITIONING : REFRICERATION SERVICES, INC. PLAINTIFF v. DAMENTFS, INC. DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 1621 of 2005 NOTICE OF REMOVAL NOTIFICATION OF REMOVAL. Defendant Darnenti's Inc hereby gives notice that the attached Notice o1'Rcinmal ryas filed on this day in the abo%c captioned action in the United States Bankruptcy Court for the \1;ddle District of Pennsylvania. Dated:?-Z4- CiS M D„?,` 5ulk OI AR BRADY P.C. Michael G. Oleyar, Fsq. Attorney I.D. 78264 1361 N. Church Street Hazleton, PA 18202 570-455-6800 1 el 570-455-6900 fax Attorney foi Damenti's Inc. UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: CHAPTER 7 LMcD LLC DEBTORS CASE No. 5-05-54237 JUDGE JOHN J. THOMAS SUSQUEHANNA AIR CONDITIONING : REFRIGERATION SERVICES, INC. PLAINTIFF V. DAMENTI'S, INC. DEFENDANTS NOTICE OF REMOVAL Removed from: Court of Common Pleas of Cumberland County, Pennsylvania Civil Action No. 1621 of 2005 Pursuant to 28 U.S.C. §§ 1334(b), 1446 and 1452 and Bankruptcy Rule 9027 of the Federal Rules of Bankruptcy Procedure, Defendant Damenti's Inc (hereinafter Damenti's) hereby removes the above captioned civil action, and all claims and causes of action therein, from the Court of Common Pleas Cumberland County, Pennsylvania to the United States Bankruptcy Court for the Middle District of Pennsylvania. The Defendant, Damenti's appears for the purposes of removal and for no other purpose and reserve all defenses and rights available to it and states as follows: Plaintiff filed the present action against Damenti's on or about March 29. 2005 in the Court of Common Pleas Cumberland County, Pennsylvania, under Civil Action No. 1621 of 2005. Exhibit "A" 2. Damenfrs filed timely Preliminary Objections on April 19, 2005. Exhibit "B" 3. Plaintiff filed an Answer to the Preliminary Objections and a Praecipe for Listing Case for Argument on May 3, 2005. Exhibit "C" 4. Plaintiff filed an Affidavit of Corporate Officer in Support of Preliminary Objections on May 13, 2005. Exhibit "D" 5. The Honorable Edward E. Guido in and ORDER of Court Dismissed Damenti's Preliminary Objections on June 6, 2005. Exhibit "E" 7. Damenti's filed a Motion for Leave to Join Aadditional Defendant LMcD LLC on June 20, 2005, Exhibit "F" 8. The Honorable Wesley Oler Jr. in and ORDER issued a Rule to Show Cause on June 22, 2005. Exhibit "G" 9. Damenti's filed an Answer to Complaint, New Matter and Counter Claim on June 27. 2005. Exhibit "H" 10. Plaintiff filed an Answer to New Matter and Counter Claim on July 19, 2005. Exhibit "I" 11. Plaintiff filed a Response in Opposition to Motion of Defendant for Leave to Join Additional Defendant and Rule to Show Cause on August 26, 2005. Exhibit "J" 12. Damenti's filed Counterclaim Plaintiff's Reply to New Matter of Counterclaim Defendant on September 13, 2005. Exhibit "K" 13. This Notice is being filed within 90 days of the Date the Debtor LMcD LLC filed a Chapter 7 Bankruptcy Petition and the Order of Relief was issued and Thus, is timely filed wider 28 U.S.C. §1446(b) and Bankruptcy Rule 9027(a)(2). 14. In the Complaint, Plaintiff alleges in November 2004 through February 2005 it provided materials, performed services, labor and leased equipment used by Damenti's in regards to an ice sculpture event which was to take place in February 2005. Plaintiff has plead that the event was to be known as "ICE 4 U 2C". Plaintiff allegedly hand delivered and mailed invoices to Damenti's, totaling $70,028.83 for the materials, services, labor and leased equipment. Plaintiff alleges Damenti's has failed to pay the balance owed on the invoices. Plaintiffs did not name the Debtor, LMcD LLC trading as "ICE 4 U 2 C" as a defendant in the lawsuit. 15. In Damenti's Answer it denied that the provided materials, performed services, labor and leased equipment were used by Damenti's. Damenti's indicates that the materials, services. labor and equipment were used by the Debtor LMeD. LLC trading as ICE 41, TZC who was the owner and operator of the ice sculpture event. Plaintiff's alleged contract was with LMeD LLC trading as ICE 4 U 2 C and not with Damenti's. If any breach occurred it was between Plaintiff and the Debtor LMcD LLC trading as ICE 4 U 2 C. 16. On or about July 28, 2005 LMeD LLC trading as ICE 4 U 2 C filed a Chapter 7 petition in the Middle District of Pennsylvania, Case number 5-05-54237. The Bankruptcy case is currently pending before the Honorable John J. Thomas, U.S. Bankruptcy Judge. A copy of the Docket is attached as Exhibit "L". 17. This Court has proper Jurisdiction over this matter under 28 U.S.C. § 1334(b) and this may be removed to this Court by Defendant Damenti's pursuant to 28 U.S.C. §1452(a) and Bankruptcy Rule 9027, because the lawsuit is within the Courts "arising under" Title 11 jurisdiction pursuant to 28 U.S.C. §1334(b) and 157(b) and also a "core" matter pursuant to 28 U.S.C. §§ 1334(b) and 157(b). More specifically the lawsuit is a claim of a creditor, the Plaintiff, against the Debtor corporation LMeD LLC. Thus, this would be a core proceeding under 28 U.S.C. § I 57(b)(2)(A), (b)(2)(B). (b)(2)(G) and (b)(2)(0). The Lawsuit effects matters concerning the administration of the estate, allowance or disallowance of claims, the state court proceeding affects the automatic stay and is a proceeding affecting the liquidation of assets of the estate and/or the adjustment of the debtor-creditor relationship. The claim in the lawsuit invokes a substantive right that arises under the bankruptcy code. These rights are mentioned directly above in this paragraph and also include for a Debtor to have all of its creditors claims adjudicated within its bankruptcy case and not in multiple state court proceedings. If what Defendant McDonald has pled is determined by this court, that the contract is between the Debtor and the plaintiff, then filing of the Debtor's bankruptcy would operate as an automatic stay of this collection lawsuit and the Plaintiff would be a general unsecured non priority creditor of the debtor. All rights and disputes regarding this claim would be properly heard and resolved before this Bankruptcy Court. This is clear "arising under" jurisdiction as required in 28 U.S.C. §§1'34(b) and 157(b). 18. In the alternative, this Court has proper Jurisdiction over this matter under 28 U.S.C. §1334(b) and this may be removed to this Court by Defendant Damenti's pursuant to 28 U.S.C. §1452(a) and Bankruptcy Rule 9027, because this Court has "related to" jurisdiction under 28 U.S.C. §§1134(b) and 157(c)(1). A proceeding is "related to" a bankruptcy if the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, a proceeding need not be against the debtor or against the debtor's property. An action is related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate. It is clear the outcome of the lawsuit filed by plaintiff could alter the debtor's rights, liabilities, options and most certainly would impact upon the administration of the bankruptcy estate. It is the Debtor's admission the contract allegedly breached was with the Plaintiff and the Debtor and not between the Plaintiff and Defendant as pled in the complaint. 19. Removal is made to the Court under 28 U.S.C. §157(a) and the Standing Order of July 26, 1985 (N. 84-0203) General Order of Reference, for the U.S. District Court for the Middle District of Pennsylvania. 20. Pursuant to the Federal Rules of Bankruptcy procedure, the Defendant Damenti's Restaurant state this proceeding is a Core Matter. In the alternative, if it is determined by this Court to be a Non-core matter the Defendant does not consent to the entry of final orders or judgments by the bankruptcy Judge. Defendant Damenti's does not consent to a jury trial by a bankruptcy Court and expressly reserve its rights to a trial in the United States District Court if this proceeding is determined to be non-core. 21. Defendant will promptly serve a copy of this Notice on Counsel for Plaintiff and will file a copy of this Notice with the Prothonotary for the Court of Common Pleas of Cumberland County Pennsylvania pursuant to 28 U.S.C. §1446(d) and Rule 9027(c) of the Federal Rules of Bankruptcy Procedure. 22. A true and correct copy of the Notification of Removal to Federal Court is attached hereto as EXHIBIT "M". WHEREFORE, the Defendant Damenti's Inc, pursuant to 28 U.S.C. §1452(x) and Rule 9027 of the Federal Rules of Bankruptcy Procedure remove this Action in its entirety from the Court of Common Pleas Cumberland County, Pennsylvania to this Court. fitfully Submitted By: eyar Brady P.C. Date:( -?l{ - 05 By Michael G. r, Esc Attorney I.D. 78264 1261 N. Church Street Hazleton, PA 18202 570-455-6800 Tel 570-455-6900 fax SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, VS. DAMENTI'S INCORPORATED, Defendant TO: DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 6 A f CIVIL TERM JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013-3302 (717) 249-3166 LAW OFFICES SNELSAKER & BRENNEMAN. P.C. SNELBAKER & BRENNEMAN, P.C. By At or Plaintiff Date: March 29 , 2005 EXHIBIT A VNA AIR CONDITIONING IN THE COURT OF COMMON PLEAS OF TION SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : CIVIL ACTION -LAW VS. INCORPORATED, NO: 2005 - /&.X l CIVIL TERM Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, SUSQUEHANNA AIR CONDITIONING TION SERVICES, INC., by its attorneys, Snelbaker & Brenneman, P.C., and avers the following: COUNTI-CONTRACT The Plaintiff herein is SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., a Pennsylvania business corporation, having its principal office at 406 Darla Road in the Borough of Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant herein is DAMENTI'S INCORPORATED, a Pennsylvania business corporation, having its principal place of business at 870 North Hunter Highway, Mountaintop, Luzerne County, Pennsylvania 18707, trading and doing business under the registered fictitious name of "Damenti's Restaurant." At all times relevant hereto, Plaintiff was in the business of selling, installing and servicing refrigeration and air conditioning equipment and systems, furnishing both labor and materials used in the performance of such services. LAW OFFICE II 4. During the fall of 2004, the Defendant entered upon and promoted a business SNELBAKER & BRENNEMAN, P.C. to consist generally of the public exhibition of ice sculptures and other winter carnival to be known as "ICE 4 U 2 C" as presented by Damenti's Restaurant at the site known and numbered as 900 Rutter Avenue, Forty Fort, Pennsylvania 18704. On or about November 12, 2004, Defendant contacted Plaintiff to provide capabilities to support the promotion as described generally above. 6. Plaintiff, by its President, inspected the site on or about November 15, 2004, and advised Defendant of its interest generally in the business, but declined to undertake the business Plaintiff was able to consult with various equipment suppliers and technical advisors. On or about November 19, 2004, after consultation with equipment suppliers and technical advisors, Plaintiff initiated a telephone call from its office aforesaid to Defendant's principal, Kevin McDonald, and, after explaining Plaintiff's plan of proceeding, offered to provide the required materials and services on a time and material basis, in response to which Defendant orally accepted said proposal and directed Plaintiff to proceed with the project. 8. Commencing as of November 23, 2004 through February 22, 2005, Plaintiff provided the materials, performed the services; labor and provided leased equipment as more fully set forth on Plaintiff's invoices to Defendant, true copies of which are attached hereto marked "Exhibit A" and incorporated herein by reference thereto, the prices, costs and expenses shown therein being those agreed to be paid by Defendant. 9. Defendant accepted said work, materials, equipment and leased equipment, all as provided by Plaintiff. 10. Plaintiff hand-delivered and mailed the above mentioned invoices to Defendant LAW OFFICES SNELBAKER8C on or about the respective dates thereof. BRENNEMAN, F. C. 11. Defendant made no objections to the content of said invoices, and Defendant payments on account of the charges contained therein. 12. The labor charges for Plaintiff's services as set forth in the above invoices are computed at Plaintiff's standard hourly rates, said rates being fair and reasonable and those agreed to by Defendant. 13. The charges for equipment and materials furnished by Plaintiff as set forth in the above mentioned invoices are computed at Plaintiff's standard prices, said prices being fair and reasonable and those agreed to by Defendant. 14. The charges for leased equipment furnished by Plaintiff as set forth in the above mentioned invoices are fair and reasonable and those agreed to by Defendant. 15. Attached hereto marked "Exhibit B" is a true and correct copy of Plaintiff s record of Defendant's account showing all of Plaintiffs charges and Defendant's payments on account. Said statement indicates an unpaid balance of $70,028.83. 16. Plaintiff has heretofore demanded payment of said sum of $70,028.83 by Defendant, which Defendant has failed and refused to pay. WHEREFORE, Plaintiff demands judgment against Defendant for the sum of $70,028.83 plus interest from the due dates of the above mentioned invoices, the costs of collection, legal fees and the costs of this action. The damages claimed by Plaintiff herein exceed the amount established by this Court for mandatory arbitration. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. ALTERNATIVE: COUNT II - QUANTUM MERUIT In the event it is determined that no express contractual basis existed in fact or law as alleged in Count I above, Plaintiff avers in the alternative as follows: 17. The averments contained in paragraphs 1 through 16 hercinabove are incorporated herein as though set forth at length hereinbelow. 18 Defendant accepted Plaintiff's work, labor, materials and equipment and used the leased equipment provided by Plaintiff. 19. Plaintiffs work performed, materials consumed and equipment used collectively improved and enhanced the value of Defendant's business venture as averred in paragraph 4 hereinbelow. 20. The fair market value of Plaintiff s labor performed and materials and equipment provided are the values set forth in Plaintiffs invoices attached hereto as "Exhibit A" and incorporated herein by reference thereto. 21. Defendant has failed and refused to pay the fair market value of said labor, materials and equipment furnished by Plaintiff as aforesaid. 22. It is unjust for Defendant to receive, use and consume the values of Plaintiff s labor, materials and equipment without full payment therefor. WHEREFORE, Plaintiff demands judgment against Defendant for the sum of $70,028.83 plus interest from the due dates of the above mentioned invoices, the costs of collection, legal LAW OFFICES SNELBAKER & BRENNEMAN. P.C. 4 and the costs of this action. The damages claimed by Plaintiff herein exceed the amount by this Court for mandatory arbitration. SNELBAKER & BRENNEMAN, P.C. By_=? d C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone(717)697-8568 Attorneys for Plaintiff LAW OFFICES SNELSAKER & BRENNEMAN, P.C. 7 USQUEHAMVA AIR CONDITIONING REFRIGERATION SERVICE, INC. ICE 4 U 2 C DAMENTI'S RLSTAURMT C/O RHRI1K MBDOBALD 000 Rinrm w LMT. TOP PA 18707 INVOICE 406 Darla Road Mechanicsburg, PA 17055-6659 INVOICE NUMBER Telephone (717) 774-1023 4305 Fax(717)766-8773 CUSTOMER ORDER NO.: INVOICE DATE: 1-7-0!;- JOB NAME: G-CC :z U C. JOB LOCATION: X1'00 ?a /?'r`/ ? G/z i / /?• / Sl 7G 5/ NATURE OF CALL: IY9/1 o4?525e1 5i 141%&A l TERMS: NET 30 DAYS FROM INVOICE DATE. Cubic Fa Cdlectim And URA Fes. Minimum Service Chmtte S'' 00. 3 n lob N Contact 7&M Quaed Canuxt R'ananly Quoted PM MomotionW 1C.CrG-u G ? ( NI l?N? ti . '/{ M llJ6 ?DII?? / ..11 O//l"?'rCI'I ?ST.i! (S."'J !0/?..4(.I'? i6! /.?UrN /a?6rc.YS I? A/r R. T etPo !! "> XTS ...- //> N?, i.?G , CF r' „ /?li?.i..?, L/r.r +.??G.?iG/- TioM1 Lin.!?S XINA !t• i n -e.s/i'1Xo _ r-rriG=/.Y;•Tew L.a?CY .-a s ?? FS'/Oh ?CS /!Ir i ? //f7/!/?.fK/If• f??5 ..ta ESf6i] J' ??', A?JJN /??C' h1fX'6G N K/?.? ' lwm-ex .Y .eroo p{o r70 O(/ XA! ?.. r F'?//% WIC// '; k b!? N /)lOri1S !4?"r.J !JRlClN L!/N? //6,Ir -? ?/? b .., te /L/ R `N .? 'v<G?=r UG.r..? !/.O?e?.?, /!r'/-, j ?. /i Tir/t /i. ?/F Ce.o?.k /ln• [y//?er.> L/G/.-„y L/n /_= Se L? !///7. //AL/G•6/J i?'Ti %rl, Le.,y/J /1 e/O //.l ./?U r//!ci ,E-< ' t i gip.. ' •: } , ` %" .. A ?. .:x.' '••9..? Y . 4.3 .51 f??Lgtc/vo??/ab /..n= emu( 14474 /v Sidi' S/t/r Nr 2.48 .14 fit6 4,1,4;X ,2 ,4%. !s 227 .25 c7 !/G L/ 36 .68 cc % >iz • /t i>aaGc :v 23 .00 19 .49 tG 9!< / //r! 158 .29 V' 516'w /r,.v 14 .74 /ib /'g c ?9LV/= 113 .68 ' h /G TOTALMATERIAL As PER COwmcT .698 16 ?ld1/ .•. L/(?+r '10 LABOR REGULAR 4.24 .00 ?Y JFr % /? yI c=! TK /O OUT OF TOWN FXP - 22 .37 /,1 /? W41 e /o TRUCK FUEL 288 .82 T11/G LC /D TRUCKCHARGE 4-TRIPS 2-TRUCKS 120 .00 7" /1-'q' G J"'< SUBTOTAL 0.57A .35 ?? W / /G PA SALES TAX ! =64 r•- -? F OTAL 113,572.35 Dote Teehnidan tiiysturc t• W? EXHIBIT A (Page I of 4 Pages) U QUE?A Alit CONDITIONING REFRIGERATION SERVICE, INC. I INVOIi' 406 Darla Road Mechanicsburg, PA 17055-6659 Telephone (717) 774-1023 Fax(717)766-8773 ICE4'82C 6 DMONTI'S RESTRAORART C(0 KWIN McJX:t'LD 870 HUNTER BWY LMT.TOP PA 16 W7 J CUSTOMER ORDER NO INVOICE NUMBER 14366 INVOICE DATE: „l-/-oS- JOBNAME: ?GE//U 2G JOB LOCATION: l00 /??rl. /< A?%= NATURE OF CALL: 3DTO? QX Sl?%rr?! TERMS: NET 3U DAYS FROM INWICE DATE. Liubk For Collectm And 1< .l Fee,. Minimum Smice CTme S2.00. l,?n t Contuq T&M Quoted C, Wa my Quoted PM Promotional x ,v 4tU=.J / ?/u.•?if: '?,' ?pa9,N 4??S f/??9 /rvfcc4Ti ,/ L../T// ,?i/f/'S U /o.,+S /.p.f0 L..?1// /??T C .of%a?SA//J A/ .... s6,/ ,(?E?/?r+.,t T?A,v /J/aT'K". flier.,, t<? ,o_u yyuJt,J vE ? gl W :f/F: 4 ?? ' J Y16 'L",:b..-T' ! ?t.:-e SIT =Af-- {7/f C?? /F' 1 ? ?7 ••J L/ / /Od .. F r .7! / e„?T. / i i ur Gv,,.. ? G A, ^ .,.d /T A•• tirr z rCe ??'Ci/IL/Yq .'/L'N L?..•!-J %7. L+- '`T/"/ /N/Y1/ AK' Ifi?Gl4 , w Y?cs?JJ ??? i u,?.,_ . r L//U G, /f/. •8.? '',v ilf CFr?/ G' i??•b /JrA,/? f?.O,?G i /11G rI .L A,rJ C/Z? ,, .l?Vi=i1?/ : /+ oar bl.?t?'e i, ,? f ?./q ?? ,/ I-ewG IQO L/NC f?ii, // : ] .uA1 •/ ?,? ?..,// :l TT,9ru=u .?i-..? ?o..i'/C' />?"G,.t/i. S /J /1, 6,J ACCG ?q/f ?^rYNIgJ. 5 56 t re .? x.13' E' t a q .h:. 7oV Tr /..vlc.,w- c ,-10,591 '.9 4 /o l/A44A$ 4sTr:„a 699.50 7. 685 cti 97 .18 1.314 OS az S/rG r- L?Yirrt 45 3C Q? //F.? /,Y hi` ar/vac; 2,073 55 LIAO G///lIF 395 .17 I , 680 00 / > r 131 .83 i A•J r ?Pc<! /.i?ET:A'r' 94° w? //?i O./i/,./<i1 ?oK:/? !9c (iS X/ yS4.pe twr,a ,?:, Q 657 36 a G !'/ //1tR y, / " 697 .65 ,??3 fy T{ ' ' • ' ?? ? ,gq?oryrywt'?m ?. x`91 t v?r t ?» ,y; ?T ii St? 3? " 5 ? ? x?'? e . .} :, X S : . `k. .f J??,F l? R :+, + -,•-a /emu rZG`>% /G?/iFk '/'? 2 ?/ `/?T TOTALMATERIAL Ac 1' F: CCYT?ACT 11 .; A / ? G L L kj / LABOR REGULAR r 1,434 CO ,T JJ 9t, ?? „/ACC ? ClG .J/! LAP;Gz; Si:BCC'h.TFcACT ,GC(? 00 D':IS ilAT.•:EL41. OUT Cl TCWN -%.F .144 .29 TRUCK CHARGE 7-P.I'Cn. FI;E1. 1.300. OC SUBTOTAL 29Z 11 PA SALES TAX 40 "?2 TOTAL ;3i Dnle Teebnici+m 51gnatu.e , . .? FXHTRTT A (Page 2 of 4 Pages) USQUEHAMVA AIR CONDITIONING REFRIGERATION SERVICE, INC. F INVOICE 406 Darla Road Mechanicsburg, PA 17055-6659 Telephone (717) 774-1023 Fax(717)766-8773 ICE4112C & DAMENTI'S RESTRAURANT C/0 REVIN Y.Cmmm 870 HUNTER MN LNT.TOP PA 18707 INVOICE NUMBER 4384 CUSTOMER ORDER NO.: -G .Sr INVOICE DATE: -./ JOB NAME: rC'.E/vac `/4'rri'Tis <S??4vr?.?% JOB LOCATION: ?e O a%T!=i? Al nX /5k 7- 70 NATURE OF CALL: ??? %O / LI!//lt?j1 /?-'n i (L TFRMC- NFT in MAYS FRnM INV(H('F nATF_ I l.hle Fnr CNhxthm And Legal Feces Minimum Service Ch:ece S2.00. Job M Contact T&M Quoted Contmi Warranty Qwted PM F4umuuuoal L T/UN /? /?•4!<' h ?<YJ, ? +%'IN y '.? ? / %L ` rig'- r , %= % .- n',L/ ,G ?/lG L G/dU C/ I/1 '4jJ <' va N %///u?K ^?% •K itk??/J J /y/?yL /=,..F Gl /cG fir? !Je<'...y S NGW -/N//J w.r !/• r - /`.'i G S =?%?r/, ??i/?/? l /mil! //4n./J!-/? ...r DD N / %AV // t(f 7,2 .00 w 750 00 1o,V 12,0,- 2.40( .00 / AJre) "11, J G/-A/_ 3128 .00 au o fu•• 60( .00 10( .00 OD - /O w% *. 20Q .00 80( .00 3 'Y/JJ AC 4w1cK 3.40 .00 ?? lea/rc 15( .00 /UeL//-r iE' ?' %G?t.'•. ,;? 11122 .34 9( .00 50c .00 `7/ / %"? • , li kc/ ?i:`<.>.t/.,,. S 4 .00 r . r . zoo TOTAL MATERIAL Ag PER CONTRACT 21 .937. 64 /J /JVSII LABOR REGULAR n 82... .0 '%s%," %, .'/',{'.-,. /c' 7/J.?-ter i-1•: vci=.?/- It Yic a.. ,421. 33 ..g?,. ?r !J yl-'';tom /r.% ono /%.c? /.":?.ac., c. ,ivo,r :.,!='•_•:r .352. 30 f?ji' i li?,,y; ?-f' ??s ,F r_'•„ J? ?/ ?:?• TRUCK CHARGE g_ALCO TXV S CAGE AS 635. 1 SUBTOTAL 3 .169. )g 'i Iii/r ,',<i s/? ?'•'? <c'.c ?r.:' `/9.no PA SALES TAX TOTAL 437,169.08 Dntr ` Khnktnn llRnaturt L/ EXHIBIT A (Page 3 of 4 Pages) IN VOWS ,lip USQU I'A4AVA 406 Darla Road INVOICE NUMBER 1! Mechanicsburg, PA 17055-6b59 AIR CONDITIONING Telephone (717) 774-1023 4404 REFRIGERATION SERVICE, INC. Fax (717) 766-8773 CUSTOMER ORDER NO.: ICE4II2C 6 DAMENT'S RESTRAURANT INVOICE DATE: - C/O R3 U McDONALD JOB NAME: ?_- 870 HUNTER HWY JOB LOCATION: Sao ??!=/1 /??L= ?MT. TOP PA 18707 NATURE OF CALL:/_ e2Al ?L?vT/!4 TERMS: NET 30 DAYS FROM INVOICE DATE. Liable For Collection And Legat Fees. Minimum Service Chargc $2.00. Job # / Z,?/?/ij Contact T&M Quoted Contract Warranty Quoted PM Promotional /J,C? _ art L: [. •-ri.hivGs o?SYI/C?t/ ?iv!=?ZATI_=r ,,, JJ TOTAL MATERIAL AS PER CONTRACT 1,99 .00 LABOR REGULAR TRUCK CHARGE SUBTOTAL 1.991 .00 PAS ES AX i TOTAL $1,995.00 to Technician Signature iISQUEKANNA AIR CONDITIONING REFRIGERATION SERVICE, INC. 406 Darla Road * Mechanicsburg, PA 17055-6659 • (717) 774-1023 * FAX (717) 766-8773 C DAMENTI'S STATEMENT OF ACCOUNT INVOICES DATE AMOUNT #4305 01107/05 $139572.35 #4366 02/01/05 $379292.40 #4384 02118/05 $379169.08 #4404 03/17105 $ 1,995.00 TOTAL $909028.83 LESS: PAYMENTS ON ACCOUNT DATE 12106/05 $ 5,000.00 DATE 12/13/05 $ 5,000.00 DATE 02/13105 $10,000.00 TOTAL $20,000.00 BALANCE DUE: $70,028.83* * PLUS COLLECTION AND LEGAL FEES EXHIBIT B VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Susquehanna Air Conditioning Refrigeration Services, Inc., the Plaintiff in the foregoing Complaint; that I am authorized to make this verification on behalf of the Plaintiff; that the facts contained in said Complaint within my personal knowledge are true and correct; that the facts contained in said Complaint not within my personal knowledge, I believe them to be true and correct based upon the information of others; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unworn falsification to authorities. Forest R. Baker, Jr. Dated: March 29, 2005 LAW OFFICES SNELRAKER & RENNEMAN, P.C. C- 0 T i :{ C-D I MlcltY'J tCt? LVKN - wi ut ? Uiv1L CASE NO: 2005-01621 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUSQUEHANA AIR CONDITIONING VS DAMENTI'S INCORPORATED R. Thomas Kline , Sheriff or Deputy Sheriff who duly sworn according to law, says, that he made a diligent sea. and inquiry for the within named DEFENDANT , to wit: DAMENTI'S INCORPORATED but was unable to locate Them in his bailiwick. He ther deputized the sheriff of LUZERNE County, Pennsyl serve the within COMPLAINT & NOTICE being h and to , zuu5 , unis attached return from LUZERNE Sheriff's Costs: So Docketing 18.00 Out of County 9.00 Surcharge 10.00 R? Dep Luzern County 30.00 Postage .74 67.74 04/06/2005 SNELBAKER BRENNE Sworn and subscribed o before me this day of G(JS/ A.Dj r Protfhonotaby? J V e was f of Cumberland County In The Court of Common Pleas of Cumberland County, Pen sylvania Susquehanna Air Conditioning Refrigeration Services Inc vs. D3nenti's Incorporated No. 05-1621 ci it Now, March 29, 2005 , I, SHERIFF OF CUMBERLAND COUNT- hereby deputize the Sheriff of Luzern County to execute this deputation being made at the request and risk of the Plaintiff. el, Sheriff of Cumberland County, Affidavit of Service Now, within upon at by handing to _ a and made known to copy of the original the contents So answers, Sworn and subscribed before me this _ day of 20 Sheriff of COSTS SERVICE MILEAGE AFFIDAVIT 20_, at o'clock M. , PA, do Writ, this the PA 1'D D (570) 825-1860 FA (570) 825-18 Luzeme County Sheriffs Department Luzerne County Courthouse EIII SN 200 North River Street Wilkes-Bane, Pennsylvania 18711 (570) 825-1651 CUMBERLAND COUNTY 2005-1621 SUSQUEHANNA AIR CONDITIONING REMR INC. ERATION SERVICES, vs DAMIRSMS INCORPORATED STATE OF PENNSYLVANIA LUZERNE COUNTY, SS: MARK SENCZAKOWICZ DEPUTY SHERIFF, for SHERIFF of said county, be ng duly sworn according to law, deposes and says, that on WEDNESDAY the THmTmTH day of MARCH 20 05 at 11:55A.M. M., prevailing time, he serv the within NOTICE AND COMPLAINT UpOn DAMENI SINCORPORATED the within named, by handing toKEVIN MCDONALD the person for the time being in charge at THE PLACE OF BUSINESS, 870 NORTH HUNTER HIGHWAY, MOUNTAINTOP i the County of Luzeme, State of Pennsylvania, a true and attested copy and making known the tents thereof. - VO! Sworn to and subscribed before me Sheriff of Luzeme County this THIRTWTH day of MARCH 20 05 49 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of the Defendant, Damenti's Incorporated. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant BY- Thomas L. Kennedy, Esquir I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 r? n ? r,-o f'. r.:? -Y1 -t? SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff Vs. DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. C/O RICHARD C SNELBAKER ESQUIRE SNELBAKER & BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17955-0318 YOU ARE HEREBY NOTIFIED to plead to the enclosed PRELIMINARY OBJECTION within twenty (20) days from service hereof or a default judgment may be entered against you. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM BY: 7-)p, Thomas L. Kennedy, Esqu' I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 EXHIBIT B SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - :LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTION OF DEFENDANT, DAMENTI'S INCORPORATED Damenti's Incorporated, by and through its attorneys, Kennedy and Lucadamo, P.C., hereby files this Preliminary Objection to the Complaint of the Plaintiff and avers as follows: RAISING IMPROPER PURSUANT TO PA.R 8 1. Plaintiff filed its Complaint against the Defendant on March 29, 2005. 2. The Complaint was served upon the Defendant on March 30, 2005 at its place of business at 870 North Hunter Highway, Mountaintop, Luzerne County, PA 18707. 3. The venture described in its Complaint by the Plaintiff is one for which it allegedly provided refrigeration capabilities, which venture was conducted at a site known as 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania, and at no other site. 1 4. Plaintiff avers that, through its President, it inspected the site in Luzerne County on November 15, 2004. 5. Plaintiff's offer to provide services took place at a meeting with Kevin McDonald, a member of LMcD, :LLC trading as Ice 4 U 2 C at Top of the 80s Restaurant in Sugarloaf Township, Luzerne County, Pennsylvania. Plaintiff's offer was accepted by Kevin McDonald at that time as a member of LMcD, LLC trading as Ice 4 U 2 C. 6. Plaintiff received $5,000.00 on December 6, 2004 from Kevin McDonald, as a member of LMcD, LLC trading as Ice 4 U 2 C, in cash and delivered to Plaintiff in Forty Fort, Luzerne County, Pennsylvania. 7. Plaintiff received $5,000.00 on December 13, 2004 from Kevin McDonald as a member of LMcD, LLC trading as Ice 4 U2 C, in cash, and delivered to Plaintiff at Forty Fort, Luzerne County, Pennsylvania. 8. Plaintiff avers that between November 23, 2004 and February 22, 2005, it provided materials, performed services and labor and provided leased equipment, all at the project site and job location of 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania. 9. The registered office and principal place of business of the Defendant is in Luzerne County, Pennsylvania. 2 10. The Defendant conducts its restaurant business solely in Luzerne County, Pennsylvania. 11. All of the alleged work and materials provided by the Plaintiff, were provided in Luzerne County, Pennsylvania. 12. No transaction or occurrence took place in any other county other than Luzerne County, Pennsylvania. 13. The Defendant does not and has not regularly conducted business in Cumberland County, Pennsylvania. 14. The alleged contract between the Plaintiff and Ice 4 U 2 C, the registered fictitious name of LMCD, LLC, was accepted by performance of the Plaintiff, which performance took place exclusively in Luzerne County, Pennsylvania. 15. Cumberland County, Pennsylvania has no relationship to the controversy between parties to this lawsuit. 16. Luzerne County has a substantial relationship to the controversy between the Plaintiff and the Defendant and is the proper forum to adjudicate the dispute. 17. The Complaint fails to aver that the Defendant accepted an offer of the Plaintiff in Cumberland County. 18. The transaction and occurrence under which the Plaintiff provided services to Ice 4 U 2 C, the registered fictitious name of LMcD, LLC, took place exclusively in Luzerne County, Pennsylvania. 3 WHEREFORE, Defendant, Damenti's Incorporated, prays this Honorable Court that its Preliminary Objection in the nature of its objection to improper venue be granted and the action transferred to the Court of Common Pleas of Luzerne County, Pennsylvania. Respectfully submitted, KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's, Inc. BY: vV vV l`'222? Tho as L. Kennedy, Esquir I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 570-459-2440 4 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED V E R I F I C A T I O N I, KEVIN McDONALD, herebv verify that. I am the President of Damenti's Incorporated, the Defendant in the above captioned matter, and that the facts set forth in the foregoing Preliminary Objection, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date f / ~?? ?`lG K IN McDONALD 5 ?a rO u, •t PRAECIPE FOR LISTING CASE FOR ARGUMENT THEPROTHONOTARY: Please list the within matter for the next Argument Court. (June 1, 2005) SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, Plaintiff V. DAMENTI'S INCORPORATED Defendant No.: 2005-1.621 Civil Term 1. Statemattertobe argued: Defendant's preliminary objection to Plaintiff's complaint. 2. Identify counsel who will argue case: (a) for Plaintiff: Richard C. Snelbaker, Esquire or Keith 0. Brenneman, EsgPire Snelbaker & Brenneman, t 44 West Main Street Mechanicsburg, PA 17055 (b) for Defendant: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: June 1, 2005 SNELBAJ?iZREEMAN, P.C. B : i te: May 3, 2005 Atto y for C. Thomas L. Kennedy, Esq. EXHIBIT C ,.? ? ?1 - w? y , f??? ? ,:?, '? W . jS', ? ls} _,?t ., y, ?.- ?:? cra N , r SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, vs. DAMENTFS INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTION AND NOW, comes Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc.. by its attorneys, Snelbaker & Brenneman, P.C., and responds to Defendant's Preliminary Objection Raising Improper Venue as follows: Admitted. Admitted. It is admitted that Defendant's business venture was physically conducted at the site known as 900 Rutter Avenue, Forty Fort, PA, as averred in paragraph 4 of Plaintiff s Complaint. It is denied that the Plaintiffs activities in providing refrigeration capabilities was limited to the site known as 900 Rutter Avenue, Forty Fort, PA. On the contrary, Plaintiffs ordering/purchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and general business operations were conducted at Plaintiffs place of business and office: to wit: 406 Darla Road, Borough of Mechanicsburg, Cumberland County. Pennsylvania. 4. Admitted. LAW °?"E 5. It is denied that Plaintiff s offer to provide services to Defendant was made and SNELBAKER & BRENNEMAN, .C. 11 that said offer was accepted by Kevin McDonald at the Top of the 80s Restaurant in Sugarloaf Township, Luzerne County, Pennsylvania. On the contrary, the offer to provide materials and services and Defendant's acceptance thereof occurred on or about November 19, 2004, in Cumberland County, Pennsylvania, in a telephone conversation initiated by Plaintiff, as more fully averred in paragraph 7 of Plaintiff's Complaint, which averments are incorporated herein by reference thereto, After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a believe as to the truth of the averment that Kevin McDonald was a member of LMcD, LLC, trading as lee 4 U 2 C. and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 6. It is admitted that Plaintiff received $5,000 in currency on December 6, 2004 from Kevin McDonald at Forty Fort, Luzeme County, Pennsylvania. It is denied that said money was received from Kevin McDonald as a member of LMcD, LLC. trading as Ice 4 U 2 C. On the contrary, said money was delivered by Kevin McDonald on behalf of Damenti's Incorporated, the Defendant herein. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Kevin McDonald was a member of LMcD, LLC, trading as Ice 4 U 2 C, and, therefore. the same is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. It is admitted that Plaintiff received $5,000 in currency on December 13, 2004 uw OFEicE SNELBAKER & BRENNEMAN. .C. from Kevin McDonald at Forty Fort, Luzeme County, Pennsylvania. It is denied that said money was received from Kevin McDonald as a member of LMcD, LLC, trading as Ice 4 U 2 C. On the contrary, said money was delivered by Kevin McDonald on behalf of Damenti's Incorporated, the Defendant herein. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Kevin McDonald was a member of LMcD, LLC, trading as Ice 4 U 2 C, and, therefore, the same is teemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 8. It is denied that Plaintiff averred that all of its work and services were performed exclusively at "the project site and job location of 900 Rutter Avenue, Forty Fort, Luzerne County, Pennsylvania." On the contrary, Plaintiff's actual averments are contained in paragraph 8 of its Complaint, which averments are incorporated herein by reference thereto. By way of further response, it is averred that while work was performed and materials delivered to said "project site and job location", Plaintiff s work and services included the orderingipurchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and equipment and general business operations were conducted from Plaintiff s place of business and office, to wit: 406 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. 9. Admitted. 10. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Defendant conducts its restaurant business solely in Luzerne County, Pennsylvania, and, therefore, said averment is deemed to be denied pursuant to Pa. R.C.P. 1029(c), proof of which is demanded, if relevant. 11. It is denied that all of the alleged work and materials provided by Plaintiff were LAW BRENNEMAN, ?.C. provided in Luzerne County, Pennsylvania. On the contrary, Plaintiff s work and materials included work and services elsewhere, such as the ordering/purchasing of materials and equipment, mobilization of workmen and equipment, scheduling of work and equipment, and general business operations as conducted from Plaintiff s place of business and office, to wit: 406 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. 12. It is denied that no transaction or occurrence took place in any other county other than Luzerne County, Pennsylvania. On the contrary, the original offer and acceptance occurred in Cumberland County, Pennsylvania as averred in Paragraph 7 of Plaintiff's Complaint, which averments are incorporated herein by reference thereto, and Plaintiffs work and service included substantial work and service at Plaintiffs place of business and office as averred in Paragraph 11 hereinabove, which averments are incorporated herein by reference thereto. 13. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments that Defendant does not and has not regularly conducted business in Cumberland County, Pennsylvania, and. therefore, said averments are deemed to be denied pursuant to Pa. R.C.P, (1029(c), proof of which is demanded, if relevant. 14. It is denied that any contract existed between Plaintiff and LMcD. LL C. trading as LAW OFFICE SNELBAKER BRENNEMAN, C. Ice 4 U 2 C. On the contrary, the contract on which Plaintiffs action is based is between Plaintiff and Damenti's Incorporated, Defendant herein, as averred in Plaintiff s Complaint, all of which averments are incorporated herein by reference thereto. It is further denied that any contract was accepted by Plaintiff s performance in Luzeme County, Pennsylvania. On the contrary, the contract was formed by a telephone conversation as averred in paragraph 7 of Plaintiffs Complaint, which averments are incorporated herein by reference thereto. It is further denied that Plaintiffs performance of the contract took place exclusively in Luzerne County, Pennsylvania. On the contrary, substantial portions of said performance occurred in Cumberland County, Pennsylvania, as averred in paragraphs 8, 11 and 12 hereinabove, all of which averments are incorporated herein by reference thereto. 4 15. It is denied that Cumberland County, Pennsylvania, has no relationship to the controversy between the parties. On the contrary, Cumberland County is the situs of the parties' contract, being the place where the offer and acceptance were made as averred in paragraph 7 of Plaintiff's Complaint, which averments are incorporated herein by reference thereto, and also being the place where Plaintiff performed substantial portions of said contract as averred in paragraphs 8, 10 and 11 hereinabove, all of which averments are incorporated herein by reference thereto. 16. The content of paragraph 16 of the Preliminary Objection is a series of conclusions of law to which no response is required and, therefore, is deemed to be denied pursuant to Pa. R.C.P. 1029(d). If said content is determined to be factual, it is denied. On the contrary, Cumberland County is the situs of the contract, being the place where the offer and acceptance were made as averred in paragraph 7 of Plaintiff s Complaint, which averments are incorporated herein by reference thereto, and also being the place where Plaintiff performed substantial portions of said contract as averred in paragraphs 8, 10 and I I hereinabove, all of which averments are incorporated herein by reference thereto. By way of further response, it is averred that physical observation of Defendant's operation in Luzerne County is unnecessary in the trial of this case. 17. It is denied that the Complaint fails to aver that Defendant accepted Plaintiff s LAW OFFICE SNELBAKER & BRENNEMAN, S offer in Cumberland County. On the contrary, it is averred that the acceptance was communicated to and received by Plaintiff at its office in Cumberland County, Pennsylvania, as averred in paragraph 7 of Plaintiffs Complaint, which averments are incorporated herein by reference thereto. 18. It is denied that Plaintiff provided services to Ice 4 U 2 C or LMcD, LLC. On the contrary, Plaintiff's work and services were provided to Damenti's Incorporated, Defendant herein, as averred in Plaintiff s Complaint, all of which averments are incorporated herein by reference thereto. It is further denied that Plaintiff's services were provided exclusively in Luzemc County, Pennsylvania. On the contrary, substantial services were performed by Plaintiff for Defendant in Cumberland County, Pennsylvania, as averred in paragraphs 8, 10, and 11 hereinabove, which averments are incorporated herein by reference thereto. WHEREFORE, Plaintiff respectfully requests your Honorable Court to dismiss Defendant's Preliminary Objection. SNELBA & BRENNEMAN, P.C. By J _ 'Richard C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone(717)697-8568 Attorneys for Plaintiff LAW BRENNEMAN, VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Susquehanna Air Conditioning Refrigeration Services, Inc., the Plaintiff in the foregoing Answer to Preliminary Objection; that I am authorized to make this verification on behalf of the Plaintiff, that the facts contained in said Answer to Preliminary Objection are true and correct; to the best of my knowledge, information and belief; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unswom falsification to authorities. Forest R. Baker, Jr. Dated: May 2, 2005 LAW OFFICE SNELBAKER BRENNEMAN, CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiff's Answer to Preliminary Objection by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 4 W? ? ?_ ?? Rrc and C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff Dated: May 3, 2005 LAW a[ BRENNEMAN, ?, ,? ?_.? -? ?_? __, _ 151 t_ '• _ l ,- CA •, ?? ,_ __ ??..1 Y is . ?`? Cam: SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED AFFIDAVIT OF CORPORATE OFFICER IN SUPPORT OF PRELIMINARY OBJECTIONS COMMONWEALTH OF PENNSYLVANIA COUNTY OF LUZERNE SS KEVIN McDONALD, being duly sworn according to law, deposes and says that: 1. I am the President of Damenti's Incorporated. 2. On December 29, 1989, Damenti's Incorporated, a statutory close corporation, was incorporated under the laws of the Commonwealth of Pennsylvania. Its registered office in Pennsylvania on the Articles of Incorporation is listed as R.D. #9, Route 309, Mountaintop, Luzerne County, Pennsylvania, 18707, Attached as "Exhibit A" to this Affidavit is a true and correct copy of the 1 EXHIBIT D Articles of Incorporation. There has been no change since incorporation, and the office remains at Mountaintop, Luzerne County, Pennsylvania. 3. On April 2, 1990, Damenti's Incorporated, a statutory close corporation, filed a Fictitious Name Application with the Pennsylvania Department of State, indicating its ficititous name of Damenti's Restaurant, and further indicating that the location of its principal place of business in the Commonwealth as R.D. 9, Route 309, Mountaintop, PA 18707, and that its registered office continued to be the same address. A copy of that Fictitious Name Registration is attached hereto as "Exhibit B." 4. Damenti's Incorporated operates only one (1) business, a restaurant serving food and liquor with its location at Route 309, Mountaintop, Luzerne County, Pennsylvania. 5. Damenti's Incorporated has never operated a restaurant or conducted any business in Cumberland County, Pennsylvania, does not advertise its business in Cumberland County, takes no acts in Cumberland County essential to its business of operating a restaurant in Mountaintop, Pennsylvania, and conducts no acts in Cumberland County which are collateral or incidental to the operation of its restaurant in Luzerne County. 6. Neither I nor any other corporate officer or shareholder of either Damenti's Incorporated or Ice 4 U 2 C has ever physically been 2 present at the Plaintiff's place of business at 401 Darla Road, Mechanicsburg, Cumberland County, Pennsylvania. 7. The oral contract made by the Plaintiff to provide services and materials to Ice 4 U 2 C was made in Sugarloaf Township, Luzerne County, Pennsylvania, at Top of the 80s Restaurant in November of 2004. I am a member of Ice 4 U 2 C, a limited liability company. 8. Any telephone calls by me to the Plaintiff or from the Plaintiff to me were incidental to the contract between Ice 4 U 2 C and the Plaintiff, which contact was made in Luzerne County, Pennsylvania. 9. Any telephone conversations between me and corporate officers of the Plaintiff were engaged in by me solely at the place of business of Damenti's Incorporated in Mountaintop, Luzerne County, Pennsylvania, or Forty Fort, Luzerne County, Pennsylvania, the location of Ice 4 U 2C. 10. The Plaintiff first accepted currency to bind its agreement to provide materials and perform services to Ice 4 U 2 C on December 6, 2004 in Forty Fort, Luzerne County, Pennsylvania. 11. The Plaintiff later accepted currency in the amount of Five Thousand and no/100 ($5,000.00) Dollars to provide services and materials on December 13, 2004 at Forty Fort, Luzerne County, Pennsylvania. 3 12. Neither Damenti's Incorporated nor Ice 4 U 2 C has ever sponsored an event in Cumberland County, Pennsy I KEVI McDONALD Sworn to and subscribed before me is day of May, 2005. A c? Notary Public NOTM&SEAL PAUTA 4 MOATS, NOTARY PUBUC NA OON,WZERNE000NTY UIYCOMMISSION DORESAPRIt 10, 2006 4 EXHIBIT A ARTICLES OF INCORPORATION DSCS 201 Miff 61) ' ARTI6LES OF INCORPORATION and Class of Shorn Subscribed to by Each Incorporator DOMESTIC BUSINESS CORPORA710N A CLOSE CORPORATION - COMPLETE BACK COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE - CORPORATION BUREAU 306 NORTH OFFICE BUILDING. HARRISBURG. PA 17120 010 NAME CONTAIN A PLEASE INDICATE (CHECK ONE) TYPE CORPORATION: C] DOMESTIC BUSINESS CORPORATION C] DOMESTIC PROFESSIONAL CORPORATION ENTER BOARD LICENSE NO. 15 P.S. 2000 BI DAMENTIFS INCORPORATED - A STATUTORY CLOSE CORPORATION FEE $75.00 011 ADDRESS OF REGISTERED OFFICE IN PENNSYLVANIA (P O. BOX NUMBER NOT ACCEPTABLE) R.D. #9 Route 309 012 CITY 030 COUNTY 013 STATE 064 ZIP CODE Mount intap, _ Luzerne Pa. 18707 050 EXPLAIN THE PURPOSE OR PURPOSES Of THE CORPORATION The Corporati.o.nr-_i,.s.,a,-S:t.atu,t•a-r•.y Close Corporation incorporated under the Pennsylvania Business Corporation Law of 1988 and shall have unlimited power to engage in any lawful business and to do any lawful act for which corporations may be incorporated under the Pennsylvania Business Corporation Law of 1988. OFF i-.Z- 90 (ATTACH e'.> x 11 SHEET IF NECESSARYI The Aggregate Number of Shares. Classes Of Shares and Pat Value of Shares Which the Corporation Shall Hate Authority to Issue: 040 Number and Class of Shares 1041 Stated Par Value Per 042 Total Authorized Capital 031 Term of Existence `500,000 shares common I Shars$1.00 $500,000.00 Perpetual and 060 Name 061. 062 063.064 Address (Street. City. State. Zip code) Number It Cliffs of Shares Kevin McDonald R.D. 09 Route 309, Mountaintop, PA. 18707 25 000 shares Helen E. McDonald R.D. #9 Route 309, Mountaintop, PA. 18707 25,000 shares (ATTACH tie.- It If SHEET IF NECESSARY) IN TESTIMONY WHEREOF. THE INCORPORATORS) HAS (HAVE) SIGNED AND SEALED THE ARTICLES OF INCORPORATION THIS 261 DAY OF December 1g, Kevin McDonald Helen E. McDonald DEC 2 9 1989 .?: ,'nY:ny of Ihr ('•Hnm:mv.'r:J,h I IrPAN mnnl ..r V1:J.. f.. n:n : n.,rnhh of 1'.nng9,.an:: M. BURR NUM COMPANY. PHILADELPHIA 002 CODE 1003 REV BOX I SEOUENTIAL NO. 1100 ( ffy EWEO BY 004 SICC AMOUNT 001 CORPORATION NUMBER DATE APPROVED S DATE REJECTED CERTIFY TO INPUT BY LOG IN LOG IN (REFILE) o REV. MAILED BY DATE O L A I VERIFIED BY L06 OUT LOG OUT (q EFILE) D OTHER I 2-7 n 1 p6d j98G1342 I. The following provisions shall regulate the status of the corporation u a close corporation: (s) (Strike out (i) or Gi) Wow. whichever is not applicable.) (il XArlxoxx,xX,XFXAGXXr1Wxa(x,xXa?cxxt?X,x?iIMXX1X1XaK-Xxfx7?YBxaY'XIx1YeY,l6x?Ilx,Xxacactji>?r14,&)(1>y )M%*XeAK*xxxxxxxxxxxxxAel1x1xx V1pMBCa N'Irl'TO F.xo'EFJI:m (ii) All of the issued shares of the corporation of all classes, exclusive of treasury shares, shall be held of record by not more than the smaller of twenty-five "shareholders" within the meaning of Subchapter S of the Internal Revenue CAUie of 1954, as amended, or AO persons. (h) All of the issued shares of all classes of the corporation shall be subject to one or more of the restrictions on transfer permitted by section 6111 of the Business Corporation Low (15 P.S. {f1R1111. (8 C L ISM 9 ) xxx xxXla K*Pxtxtxx"x")4dkxl %Xx"_xfxi"x 16X X"Y#K(k)sxAl)M xlx"4)m X*x0"J4kx,xlx1%x Xo)Rp AK1xixx )PftIX9 VXIX x 1tw)hl iHIAFXl 11 2z (optional: MIX NIxPxiXThe status of the corporation as a "close corporation" within the meaning of the Business Corporation I,aw shall not be trrminaled without ythyeyafffrmative vote or written consent of fall Folders of) bYd ?\(•.J4J6 A*X?0(dkX - -_X XXXAshares of all classes of the corporation. (BCL 23fyt?y( V C VNAITPN AT I.rd:T TWU 1T44lltl W- )xxxxq`rFOFMryYyxAlRVFW?X44xryatyt'xlyn(? 1xirRylMy(Fyaa ylil,`,(yR?yM1lyNyaly4ry,yp?yaa(vC.rtr MU yp ?y pyp pyQy ?y AfNAwxyx/yy?yxxAXatlyapTyyya?atyxgy'e/yl:ayryMyw?yixx1xA.xx X19,KX X XX yp?.tr nixtM A xwrylr(x'N:YAIX1aaxx xlrtix NIMI XAX xrxx x,a MrCY(aW?1NYPlnyrarxtlM %x x WORM 1xxxx?fF 1GY1XtYc1tJ Xnx,xXXIGxJFaI?KXtd YlXdS aiX) a14ac?4x x?c xxxxxxxxxxXLX WW1XXUUX,KdGxlEAxx--xlxx xlxzauzxalxalxrlolXxx,leacxM xAxlx?cxxa?tzx rcx,?a ?sxa?aFeMM-nom xaF "xae"xex ?&s(Kx lUzaxaexax 3. Neither the corporation, nor any shareholder, shall make an offering of any of Its shares of any class that would constitute a "public offering" within the meaning of the Securities Act of 1933 (15 U.S.C. 77a et seq) as amended. (8CL 2304(a)). 4. The business and affairs of the corporation shall be managed by or under the direction of the shareholders of the corporation rather than by or under the direction of-a board of directors; provided, however, the shareholders of the corporation shall be deemed to be directors for purposes of applying provisions of BCL Subpart IIB, including Sec. 1721(e) which permits the adoption of a by-law limiting the liabilities of directors. (BCL 2332(a)). M BUMP•r'M CDMMAMY, MMILAD(I a -A 89 DEC 29 pH T. 28 pA DEPT. OF STATE,;. fc) 1bYcxrxr?'FYa$Fi(Xtliil(XFXI?(eXIXX?iX?xl'1(Ky.xl'xtYXI?61?xXr76X?CXIai?YZxilitxxoKlYIXcFX,Xt1F.YtXXx?1L?11EX17f's?iXaE'X *xlX1X05xA*Xix)X(X)M as KiXIJW(d4 X11% X4W6JIYOYd( x xx EXHIBIT B FICTITIOUS NAME REGISTRATION APPLICANT'S ACCT NO. DSCB: 15.55 (Rev. 10-74) Filing Fee: $40 CFN•2B Application for Conducting Business by a Corporation Under a Fictitious Name Filed this p 0 90151046 Commonwealth of Pennsylvania Department of State (Line for numbcrin I Ss9?Z- COMMONWEALTH OF PENN YLVANIA DEPARTMENT OF STATE CORPORATION BUREAU GA11' 4q.- Secretary of the Commonwealth (Box for Certification) In compliance with the requirements of section 5 of the Fictitious Corporate Name Act, act of July 11, 1957 (P. L. 783) (15 P. S. $ 55) the applicant corporation, desiring to register an assumed or fictitious name in the Office of the Secretary of the Commonwealth, hereby certifies: _ 1. The fictitious name under which the business is being or will be carried on is: DAMENTI'S RESTAURANT 2. A brief statement of the character or nature of the business is: TO OWN, MANAGE AND OPERATE A RESTAURANT SERVING FOOD AND LIQUOR. 3. The name of the applicant corporation: DAMENTI'S INCORPORATED 4. Its state and date of incorporation: State: PENNSYLVANIA Date: JAN. 2. 1990 5. The location, Including street and number, if any, of the principal place of business in this Commonwealth: R.D. #9, ROUTE 309, MOUNTAINTOP PA 18707 (STREET) (CITY) (LP CODE) 6. The registered office of the applicant corporation in this Commonwealth: R.D_ #9. ROUTE 309, MOUNTAINTOP PA 18707 (STREET) . (CITY) (Zip CODE) 7. X(%t11?(cxStYt XfJStKaIMd(a?1?Xc61(M3tills[3(J(6fil(d(d4)X1(filE3WEXvY?(ilE?(il6d??elEdltYcYife?K?uE6(oY?(iXdyYcK?(i(JE- Yd'e)bKdlflq(*4xmYcI6x)xgtY(xi(3f>XX)%)C)SdSTh) X,A*kx XX (DATE) A STATUTORY CLOSE CORPORATION M. BURR REIM COMPANY, PHILADELPHIA 90'51047 DSCB: 15-55 (Rev. 10-741-2 The name and residence, including number and street, of any other entity, if any, in combination with which the applicant corporation seeks to conduct business under the fictitious name is or are: (NAME) (STREET) (CITY) (STATE) RIP CODE) NONE 1N TESTIMONY WHEREOF, all entities named within have signed this application or caused it to be signed by their Presidents or Vice Presi&nts and their corporate seals duly attested by their Secretaries or Trea- surerstobehereunto.txedthi-s ZZ day of MARCH,19-_9Q--. C-lm& r HELEN E. McDONALD -T( 17?N cDONALD, PIES ENT SECRETARY-TREASURER COMMONWEALTH OF PENNSYLVANIA COUNTYOF LUZERNE SS: PO LA day of MARCH 19 90 Personally appeared before me- this _ KEVIN MCDONALDiPRESIDENT. DAMENTIr who, being duly sworn according to law, deposes and says that the statements contained in the foregoing appli- cation are true. (SEAL) _ (NOTARY PUBLIC) $VGNATUPE OF AFFI?) 1=I My Commission:explres INSTRUCTIONS -FOR COMPLETION OF FORM: A. Application must be signed in behalf of the applicant corporation and for all other entities listed with it in Paragraph 8. B. If the applicant is a foreign corporation, the applicant must, prior to the filing of an application, be duly authorized to carry on or conduct the business described in Paragraph 2 under the laws of this Common- wealth. If the authorization to do business was issued by the Insurance Department or if no certificate of authority is required by law, Paragraph 7 of the form should be modified accordingly. C. Where an individual is a member of a partnership or joint venture with one or more corporations under a fictitious name, Form DSCB: 15-55/54-28.1 (Application for conducting business under an Assumed or Fictitious Name-Individuals and Corporations) should be used. D. Forms and information related to filing in the office of the prothonotary of the proper county shall be secured by direct inquiry addressed to the prothonotary. E. All information shall be typed or printed, in black ink. F. Make check payable to: Secretary of the Commonwealth. (CASH WILL NOT BE ACCEPTED). G. Send application and check to: Corporation Bureau: Department of State, Room 308 North Office Bldg., Harrisburg, Pa. 17120. :^ i ?? iM1; ?, ? ^ ,rY __ SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. V. DAMENTI'S INCORPORATED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1621 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this 6TH day of JUNE, 2005, after review of the briefs filed by the parties, as well as the authority cited therein, and having heard argument thereon, Defendant's Preliminary Objection Raising Improper Venue is DISMISSED. Edward E. Guido, J. ichard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, Pa. 17055 Xmas L. Kennedy, Esquire 200 West Chzpel Street Hazleton, Pa. 18201 :sld J a? EXHIBIT "E" V6NVMASM t I a :OI NV L- NnF SO4l A8VIONQHiQ8d 3N1 3O 30WO MU SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED MOTION OF DEFENDANT FOR LEAVE TO JOIN ADDITIONAL DEFENDANT Defendant, Damenti's Incorporated, by its undersigned counsel, moves this Court pursuant to Pa.R.C.P. 2253 for an Order allowing the joinder of LMcD, LLC trading as Ice 4 U 2 C as an Additional Defendant in this action and in support thereof alleges as follows: 1. Plaintiff instituted this action against the Defendant on March 29, 2005. Service was made on the Defendant on March 30, 2005. 2. Plaintiff seeks damages for breach of contract resulting from Plaintiff's providing services, labor, material and equipment in connection with public exhibitions of ice sculptures at Forty Fort, Pennsylvania in late 2004 and early 2005. 3. Defendant believes, and therefore avers, that the proposed Additional Defendant, LMcD, LLC trading as Ice 4 U 2 C, is solely liable to Plaintiff, and is the only party with whom the Plaintiff contracted with respect to the business venture identified in its Complaint. 1 EXHIBIT °F 4. On April 19, 2005, the Defendant filed a Preliminary Objection to the Complaint of the Plaintiff, raising improper venue pursuant to Pa.R.C.P. 1028(a)(1). On June 6, 2005, the Court dismissed Defendant's Preliminary Objection. 5. The action taken with respect to the Defendant's Preliminary Objection was argued before Judges Bailey and Guido, and the Order dismissing the Preliminary Objection was issued by The Honorable Edward E. Guido, for the Court. 6. Pa.R.C.P. 2253 sets forth the time for joinder of nonparties as Additional Defendants at sixty (60) days. That period has been construed by the Appellate Courts of the Commonwealth as having been tolled by the filing of Preliminary Objections by an original Defendant, and that a Complaint against an Additional Defendant may be filed within sixty (60) days after those Objections have been overruled and dismissed. 7. Defendant has filed this Motion promptly after the dismissal of its Preliminary Objection. 8. The allowance of the Motion will permit the liabilities and rights of the various parties to be heard and determined at the same time thereby avoiding a multiplicity of cases and will promote judicial economy. 2 9. The Defendant will be prejudiced by the denial of this Motion as it has a good and meritorious action against the proposed Additional Defendant. 10. The proposed Additional Defendant will not be prejudiced by the joinder in this matter since the facts which form the basis of liability against it are uncomplicated, and in most respects, have been averred by the Plaintiff in its Complaint. 11. No discovery has been taken to date, and the matter continues in the pleading stage. 12. Plaintiff will not be prejudiced by joinder of the proposed Additional Defendant. 12. Counsel for the Plaintiff has not concurred to the relief sought by this Motion. WHEREFORE, Defendant, Damenti's Incorporated, respectfully requests that this Court grant its Motion and permit the filing of a Complaint by it against the proposed Additional Defendant, LMcD, LLC trading as Ice 4 U 2 C. Respectfully submitted, KENNEDY AND LUCADAMO, P.C. Attorneys for Petitioner BY: I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 3 SUSQUEHANNA AIR CONDITIONING IN THE COURT OF COMMON PLEAS OF REFRIGERATION SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW VS. NO. 2005-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE OF MOTION AND NOW, this 17th day of June, 2005, I, THOMAS L. KENNEDY, ESQUIRE, of the law firm of KENNEDY AND LUCADAMO, P.C., hereby certify that on this day I served the foregoing Motion of Defendant for Leave to Join Additional Defendant by depositing a true and correct copy thereof in the United States mail, postage prepaid, at Hazleton, Pennsylvania, and addressed as follows: RICHARD C SNELBAKER ESQUIRE SNELBAKER AND BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17055-0318 Thomas L. Kennedy, Esqu c? ? ? ,?, C4, {n? ^J j? :-. -r; - "p -jam _ --' < - rn w .. ? t ? o •< SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff V. DAMENTI' S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1621 CIVIL TERM ORDER OF COURT AND NOW, this 22"d day of June, 2005, upon consideration of Motion of Defendant for Leave To Join Additional Defendant, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, ,ichard C. Snelbaker, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Plaintiff Xomas L. Kennedy, Esq. 200 West Chapel Street Hazleton, PA 18201 Attorney for Defendant Te 0 D pLP EXHIBIT "G" 1,,J ZZ MN soal htN-LO' r 0 W d 74AL ?O ??ila?-C731{d SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 20(15-1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: SUSQUEHANNA AIR CONDITIONING REFRIGERATION C/O RICHARD C SNELBAKER ESQUIRE SNELBAKER AND BRENNEMAN PC 44 WEST MAIN STREET P 0 BOX 318 MECHANICSBURG PA 17055-0318 SERVICES, INC. YOU ARE HEREBY NOTIFIED to file a written response to the enclosed NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or judgment may be entered against you. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant, Damenti's Incorporated BY: Thomas L. Kennedy, Esqui I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 Exhibit "H" SUSQUEHANNA AIR CONDITIONING IN THE COURT OF COMMON PLEAS OF REFRIGERATION SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW VS. DAMENTI'S INCORPORATED, Defendant NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT TO ORIGINAL COMPLAINT OF PLAINTIFF Defendant, Damenti's Incorporated, by and through its counsel answers the Complaint of the Plaintiff as follows: COUNT I - CONTRACT 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated. During the Fall of 2004, LMcD, LLC trading as Ice 4 U 2 C, a Pennsylvania limited liability company, originated the business venture consisting generally of the public exhibition of ice sculptures and other activities at 900 Rutter Avenue, Forty Fort, Pennsylvania. It is specifically denied that the Defendant had any ownership interest in the business venture. On the contrary, the Defendant, together with other individuals and 1 corporations, including WNEP-TV, acted as advertisers and sponsors of the event. 5. Denied as stated Defendant contacted the It is specifically denied that the Plaintiff to provide refrigeration capabilities to support the promotion. On the contrary, Kevin McDonald, as a member of LMcD, LLC trading as Ice 4 U 2 C, contacted the Plaintiff. 6. Admitted in part and denied in part. It is admitted that the Plaintiff by its President, inspected the site on or about November 15, 2004. It is specifically denied that the Plaintiff advised the Defendant of its interest in the business. On the contrary, Plaintiff advised Kevin McDonald, a member of LMcD, LLC trading as Ice 4 U 2 C, of its interest in the business, and after learning that the budget for refrigeration services and equipment was Thirty Thousand and no/100 ($30,000.00) Dollars. 7. Denied as stated. It is admitted that on or about November 19, 2004, the Plaintiff initiated a telephone call to Kevin McDonald explaining Plaintiff's plan of proceeding. It is specifically denied that the Defendant orally accepted the proposal of the Plaintiff or directed the Plaintiff to proceed with the project. On the contrary, Kevin McDonald, on behalf of LMcD, LLC trading as Ice 4 U 2 C, orally accepted the proposal and directed the Defendant to proceed. By way 2 of further answer, the acceptance of Plaintiff's offer was based on Plaintiff's representation and assurance that the building where the ice sculptures were located could be kept at twenty (20) degrees Fahrenheit. 8. Denied as stated. It is specifically denied that Plaintiff provided materials, performed services and labor and provided leased equipment to the Defendant. On the contrary, Plaintiff's materials and services, labor and leased equipment were provided to LMcD, LLC trading as Ice 4 U 2, the owner of the project known as Ice 4 U 2 C. By way of further answer, the services, labor and equipment provided by Plaintiff were of poor quality, in breach of and not in conformity with Plaintiff's representation and assurances, and in certain material instances without authority, including but not limited to the following: (a) Plaintiff improperly calculated the requirements for the temperature control needed and installed a thirty (30) ton condenser approximately two (2) weeks prior to the ice carving show which was unable to cool the building below thirty-two (32) degrees (F) resulting in the commencement of melting of two hundred (200) tons of ice, the inability of carvers to complete work on sculptures prior to the scheduled opening, and a dangerous condition of water in 3 walkways causing one carver to fall and sustain a broken ankle; (b) Without authority from LMcD, LLC trading as Ice 4 U 2 C, with respect to cost, and solely in an attempt to remedy its failure described above, Plaintiff installed a temporary one hundred (100) ton condensing and cooling unit; (c) Plaintiff failed to maintain the one hundred (100) ton condensing /cooling unit, which shut down numerous times during the first twenty (20) days of the exhibition, requiring workmen of LMcD, LLC trading as Ice 4 U 2 C to follow Plaintiff's oral instructions to repair and restart the unit, and in one instance shutting down and failing during the night causing melting and deterioration of ice sculptures; (d) Plaintiff removed the one hundred (100) ton condensing unit three (3) weeks prior to the closing date of the exhibition, causing its early termination; (e) Plaintiff, on Invoice 4305, improperly charged Ice 4 U 2 C for installation of supports when the installation was done by Ice 4 U 2 C; 4 (f) Plaintiff, on Invoice 4366, improperly charged Ice 4 U 2 C for sixteen (16) one thousand (1,000) watt heaters, but installed only two (2); (g) Plaintiff, on Invoice 4384, improperly charged Ice 4 U 2 C for seven (7) drums of ethylene glycol, the majority of which were taken by Plaintiff to his place of business at the close of the exhibition; (h) Plaintiff, on Invoice 4404, improperly charged Ice 4 U 2 C a freight charge for a generator installed solely to attempt to remedy Plaintiff's continuing inability to cool the building as agreed; (i) Plaintiff, on Invoice 4384, improperly charged Ice 4 U 2 C for eight (8) Alco valves which, on information and belief, were not used for the rental equipment; (j) Plaintiff failed to provide necessary refrigeration services and equipment as agreed with Ice 4 U 2 C and in accordance with the budget parameters disclosed to it, and thereafter, improperly charged Ice 4 U 2 C the cost of remedying Plaintiff's own failure of performance; (k) The Plaintiff knew that its failure to provide temperatures cool enough to prevent ice from thawing would adversely affect the nature, quality and continued existence of ice 5 sculptures, and was unable to provide those consistent low temperatures despite continued complaints from persons affiliated with Ice 4 U 2 C; and (1) Plaintiff by its President, Forest Baker, Jr., admitted its shortcoming and failure to provide equipment and services necessary to cool the premises where Ice 4 U 2 C was conducted when it was required to install a one hundred (100) ton condensing unit well after the ice was delivered to the job location and after its substantial deterioration. 9. Denied as stated. It is specifically denied that the Defendant accepted work, materials, equipment and leased equipment as provided by the Plaintiff. On the contrary, any acceptance of work, materials, equipment and leased equipment was accepted by LMcD, LLC trading as Ice 4 U 2 C. By way of further answer, and on information and belief, defendant avers that Ice 4 U 2 C never accepted the failed performance of Plaintiff for the reasons set forth in Defendant's answer to paragraph 8, which is incorporated by reference. 10. Denied as stated. It is denied that the Plaintiff hand delivered and mailed invoices to the Defendant on the dates thereof. On the contrary, the invoices were delivered to Ice 4 U 2 C and 6 Damenti's Restaurant c/o Kevin McDonald and otherwise speak for themselves. 11. Denied as stated. It is specifically denied that the Defendant made payments on account of the charges contained on the invoices. On the contrary, all payments were made by Kevin McDonald acting on behalf of Ice 4 U 2 C. Defendant avers on information and belief, that Ice 4 U 2 C objected to Plaintiff's failure of performance and Plaintiff's unauthorized charges for its attempt to remedy that failure. 12. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide services. 13. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is 7 specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide equipment and materials. 14. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and therefore those allegations are specifically denied. By way of further answer, it is specifically denied that the Defendant agreed to the charges set forth on the invoices. On the contrary, the Defendant was a principal advertising sponsor of the event with no ownership interest in the venture and at no time entered into any agreement with the Plaintiff to provide leased equipment. 15. Denied as stated. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth that "Exhibit B" is a true and correct copy of Plaintiff's record of Defendant's account. By way of further answer, and on information and belief, it is denied that Defendant made any payments on account, and that the payments shown on the account were made by Ice 4 U 2 C. 8 16. Admitted in part and denied in part. It is admitted that Plaintiff has demanded payment and that Defendant has refused to pay. It is denied that Defendant has any obligation to pay Plaintiff, and that, on the contrary, any obligation, which is specifically denied, would be that of Ice 4 U 2 C. WHEREFORE, Defendant, Damenti's Incorporated, respectfully request that this Court enter judgment in its favor and against Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. NEW MATTER 17. Defendant hereby incorporates paragraphs 1 through 16 above as if the same were fully set forth herein at length. 18. Plaintiff's agreement to provide materials, services, labor and leased equipment for the public exhibition of ice sculptures known as Ice 4 U 2 C at Forty Fort, Pennsylvania, was made with LMcD, LLC trading as Ice 4 U 2 C. 19. The fictitious name "Ice 4 U 2 C" is a registered fictitious name of LMcD, LLC. 20. On October 12, 2004, LMcD, LLC filed with the Pennsylvania Department of State/Corporation Bureau, a Certificate of Organization as a Domestic Limited Liability Company, listing its address at 870 9 North Hunter Highway, Mountaintop, Pennsylvania. This document is a public document and was available for inspection by the Plaintiff prior to the allegations set forth in its Complaint. 21. on October 22, 2004, LMcD, LLC trading as Ice 4 U 2 C filed with the Pennsylvania Department of State/Corporation Bureau an Application to Register its fictitious name of Ice 4 U 2 C, specifically stating its business activity of restaurant with liquor license and exhibitions of craft shows, and further stating its address at 870 North Hunter Highway in Mountaintop, Pennsylvania, indicating that the only entity interested in the business is LMcD, LLC. This document is a public document and was available for inspection by the Plaintiff prior to the allegations set forth in its Complaint. 22. Without in any way admitting that a contract between the Plaintiff and the Defendant existed, the Defendant avers, on information and belief, that the equipment and services provided by the Plaintiff were not provided by the Plaintiff under the terms of its oral contract and that the Plaintiff is in material breach of the contract which bars any claims it may have against the Defendant or Ice 4 U 2 C for reasons set forth in paragraph 8 of Defendant's Answers which are incorporated herein by reference. 10 23. Prior to the commencement of the public exhibition of ice sculptures, Ice 4 U 2 C applied for the transfer of a Pennsylvania Restaurant Liquor License from the Pennsylvania Liquor Control Board to sell malt beverages at its restaurant located at 900 Rutter Avenue, Forty Fort, Pennsylvania. Notice of that application of Ice 4 U 2 C was prominently posted at the premises on November 15, 2004 and available for inspection by the Plaintiff at all times prior to Plaintiff's commencement of work at the premises. 24. Plaintiff's failure to provide services and equipment as represented and assured by it to enable the public exhibition of ice sculptures without melting or thawing, bars Plaintiff's action and is a defense thereto. 25. No contract existed between the Plaintiff and the Defendant. WHEREFORE, Defendant, Damenti's Restaurant, respectfully requests that this Court enter judgment in its favor and against the Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. COUNTERCLAIM 1. Counterclaim Plaintiff is a Pennsylvania business corporation with principal place of business at 870 North Hunter Highway, Mountaintop, Pennsylvania, 18707. 11 2. Counterclaim Defendant is a Pennsylvania business corporation having its principal place of business at 406 Darla Road, Mechanicsburg, Pennsylvania. 3. In the event that Counterclaim Plaintiff is found to have entered into a contract with Counterclaim Defendant for materials, services, labor and leased equipment in connection with the public exhibition of ice sculptures known as Ice 4 U 2 C at Forty Fort, Pennsylvania, which is specifically denied by the Counterclaim Plaintiff, then and only in that event, and in the alternative, Counterclaim Defendant is liable to Counterclaim Plaintiff in the amount of One Hundred One Thousand and no/100 ($101,000.00) Dollars as a result of Counterclaim Defendant's failure to perform its contract in a good and workmanlike manner, as represented and assured and specifically as set forth below: (a) Plaintiff improperly calculated the requirements for the temperature control needed and installed a thirty (30) ton condenser approximately two (2) weeks prior to the ice carving show which was unable to cool the building below thirty-two (32) degrees (F) resulting in the commencement of melting of two hundred (200) tons of ice, the inability of carvers to complete work on sculptures prior to the scheduled opening, and a dangerous condition of water in 12 walkways causing one carver to fall and sustain a broken ankle; (b) Without authority from LMcD, LLC trading as Ice 4 U 2 C, with respect to cost, and solely in an attempt to remedy its failure described above, Plaintiff installed a temporary one hundred (100) ton condensing unit; (c) Counterclaim Defendant failed to maintain the one hundred (100) ton condensing/cooling unit, which shut down numerous times during the first twenty (20) days of the exhibition, requiring workmen of LMcD, LLC trading as Ice 4 U 2 C to follow Counterclaim Defendant's oral instructions to repair and restart the unit, and in one instance shutting down and failing during the night causing melting and deterioration of ice sculptures; (d) Counterclaim Defendant removed the one hundred (100) ton condensing/cooling unit three (3) weeks prior to the expected closing date of the exhibition, causing its early termination; (e) Counterclaim Defendant failed to provide necessary refrigeration services and equipment as agreed with Ice 4 U 2 C and in accordance with the budget parameters disclosed 13 to it, and thereafter, improperly charged Ice 4 U 2 C the alleged cost of remedying it's own failure of performance; (k) The Counterclaim Defendant knew that its failure to provide temperatures cool enough to prevent ice from thawing would adversely affect the nature, quality and continued existence of ice sculptures, and was unable to provide those consistent low temperatures despite continued complaints from persons affiliated with Ice 4 U 2 C; and (1) Counterclaim Defendant by its President, Forest Baker, Jr., admitted its shortcoming and failure to provide equipment and services necessary to cool the premises where Ice 4 U 2 C was conducted when it was required to install a one hundred (100) ton condensing/cooling unit well after the ice was delivered to the job location and after its substantial deterioration. 4. Solely as a result of the Counterclaim Defendant's failure of performance as set forth above, the public exhibition of ice 4 U 2 C was forced to close its exhibition three (3) weeks prior to its scheduled termination, resulting in the loss of net receipts of Seventy-five Thousand and no/100 ($75,000.00) Dollars from the sale of tickets, the sale of food and beverages and incidental items at its public exhibition. 14 5. Solely as a result of Counterclaim Defendant's failure of performance as set forth above, losses were sustained in the amount of Six Thousand and no/100 ($6,000.00) Dollars for additional expenses to house, feed and pay ice carvers for an additional three (3) days when no work could be performed on melting ice. 6. Solely as a result of Counterclaim Defendant's failure of performance, Counterclaim Plaintiff suffered the loss of Twenty Thousand and no/100 ($20,000.00) Dollars in payment to Counterclaim Defendant for services improperly performed. 7. Counterclaim Plaintiff is entitled to set-off against Counterclaim Defendant any damages for which it is held liable in Plaintiff's claim to the extent of Counterclaim Plaintiff's damages in this Counterclaim. WHEREFORE, Counterclaim Plaintiff demands that judgment be entered in its favor and against the Counterclaim Defendant in the amount of One Hundred One Thousand and no/100 ($101,000.00) Dollars together with interest and costs of suit in the event that Counterclaim Defendant is adjudged to have entered into a contract with Counterclaim Plaintiff. It is further demanded by Counterclaim Defendant that, in the event of a finding of a contract between Counterclaim Plaintiff and Counterclaim Defendant, and in the event that any judgment against Counterclaim Plaintiff be entered against 15 it on Plaintiff's cause of action, that Counterclaim Plaintiff's recovery in this Counterclaim be set off against any judgment in favor of Plaintiff and against Defendant on Plaintiff's Complaint. KENNEDY AND LUCADAMO, P.C. Attorneys for Defendant and Counterclaim Plaintiff BY: Tho as L. Kennedy, Esqu'r I.D. # 01666 200 West Chapel Street Hazleton, PA 16201 Telephone: (570) 459-2440 16 V E R I F I C A T I O N I, KEVIN McDONALD, hereby certify that I am President of Damenti's Incorporated, and that the facts set forth in the foregoing Answer of Defendant to Original Complaint of Plaintiff, New Matter and Counterclaim, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: 02 / KztVIN MCDONALD ' 17 r-? d ( ?: :`?i e...,, -n ... ?y?, _ .. -'?,? 1 N r r ? .? _ ?4 . -r. ?„ .? ,n _: rn ,r .G?; A "' .1? ,. , ?.' SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Damenti's Incorporated (Defendant) and Thomas L. Kennedy, Esquire (Attorney for Defendant) You are hereby notified to file a written response to the enclosed Counterclaim Defendant's New Matter within twenty (20) days from service hereof or a judgment may be entered against you. SNELBAKER & BRENNEMAN, P.C. By. LAW OFFICES 3NELBAKER & 2ENNEMAN. P.C. Dated: July !9 , 2005 Ricc5ard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff and Counterclaim Defendant NNA AIR CONDITIONING TION SERVICES, INC., Plaintiff, vs. INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER, REPLY TO COUNTERCLAIM AND NEW MATTER AND NOW, comes Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc., its attorneys, Snelbaker & Brenneman, P.C., and responds to Defendant's New Matter and Counterclaim as follows: REPLY TO NEW MATTER 17. Paragraph 17 of Defendant's New Matter should be stricken as improperly requiring a reply to an Answer which does not constitute pleading in compliance with the Pennsylvania Rules of Civil Procedure. To the extent a response would be permissible, the allegations of Defendant's Answer are denied as if set forth in this paragraph seriatim to the extent the same are contrary to any averment in the Complaint. By way of further reply, paragraph 22 of Plaintiff's Reply to New Matter and all averments in Counterclaim Defendant's Reply to New Matter are incorporated by reference herein in their entirety. 18. It is denied that the subject agreement was made by Plaintiff with LMcD, LLC, LAW OFFICES NELBAKER & 'NNEMAN. P.C. trading as Ice 4 U 2 C. On the contrary, Plaintiff's agreement was made with Defendant, Damenti's Incorporated, as averred in Plaintiff's Complaint filed in this action, the averments of said Complaint being incorporated herein by reference thereto. 19. Admitted. Exhibit "I" 20. The averments relating to facts of the filings are admitted. It is denied that any obligation to inspect said records. By way of further response, it is averred that allegations are irrelevant and impertinent to this action since Plaintiff contracted with 's Incorporated, the Defendant herein, as averred in Plaintiff s Complaint, and did not with LMcD, LLC, or Ice 4 U 2 C. 21. The averments relating to facts of the filings are admitted. It is denied that any obligation to inspect said records. By way of further response, it is averred that allegations are irrelevant and impertinent to this action since Plaintiff contracted with Incorporated, the Defendant herein, as averred in Plaintiffs Complaint, and did not with LMcD, LLC, or Ice 4 U 2 C. 22. The content of paragraph 22 is a series of conclusions of law to which no response is required and, therefore, is/are deemed to be denied. With respect to any portion of said paragraph which properly pleads averments of fact, the same are denied for all the reasons set forth in Plaintiff's Complaint and in the Reply to Counterclaim, all of which are incorporated herein by reference thereto. Inasmuch as the references to paragraph 8 of Defendant's Answer contain some of the same averments as in the Counterclaim (to wit: 13 (a), (b), (c), (d), (e), (k) and (1)), said averments are denied for the reasons set forth in the Reply to Counterclaim hereinbelow. Plaintiff responds to the incorporated averments in 18 (e), (f), (g), (h) and (i) as follows: 8.(e). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U LAW OFFICES NELRAKER & NNEMAN, P.C. 2 C, for installation of supports installed by others. On the contrary, Plaintiff was required to dismantle the supports constructed by others in order to install the 5-ton condenser unit, and then reinstall the supports as billed to Defendant on invoice 94305. 8.(f). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U 2 C, for 16 heaters but only installed 2. On the contrary, Plaintiff fumished and installed 16 heaters - 2 on each of the 8 existing evaporators as billed to Defendant 8.(g). It is denied that Plaintiff improperly charged anyone, particularly Ice 4 U 2 C, for 7 drums of ethylene glycol and improperly took a "majority" of them to its place of business. On the contrary, Plaintiff furnished and installed the 7 drums of ethylene glycol during the course of the use of the cooling equipment which were properly billed to Defendant. Plaintiff removed the used and contaminated ethylene glycol at the close of the exhibition in order to avoid liability for improper disposition of hazardous material or creating environmental contamination. 8.(h). It is denied that Plaintiff improperly charged anyone, particularly ice 4 U 2 C. for freight charges as alleged. On the contrary, the freight charge was made to Defendant and related to the installation and use of the 100-ton cooling unit as authorized by Defendant as averred in paragraph 3.(b) of Reply to Counterclaim, all of which is incorporated herein by reference thereto. The freight charge was belatedly billed by the vendor/lessor, but was nevertheless a portion of the cost of providing the 100-ton equipment as approved. 8.(i). It is denied that Plaintiff improperly charged anyone for 8 Alco valves AW OFFICES NELSAKER at :NNEMAN, P.C. which were not used in Defendant's project. On the contrary, it is averred that the 8 Alco valves were procured and installed by Plaintiff on the 8 existing evaporators and were not billed by Plaintiff as having been installed on the "rental equipment." 23. After reasonable investigation, Plaintiff is without information or knowledge sufficient to form a belief as to the truth of the averments in paragraph 23 and, therefore, they are to be denied pursuant to Pa. R.C.P. 1029 (c), proof of which is demanded at the trial of case, if relevant. 24. The content of paragraph 24 is a series of conclusions of law to which no se is required and, therefore, is/are deemed to be denied. By way of further reply, it is that Plaintiff failed to provide any services and equipment agreed to be provided. With to any other portions of said paragraph which properly pleads averments of fact, the same denied for all the reasons set forth in Plaintiff's Complaint and in the Reply to Counterclaim, of which are incorporated herein by reference thereto. 25. The content of paragraph 25 is a conclusion of law to which no response is required and, therefore, is deemed to be denied. With respect to any portion of said paragraph which properly pleads averments of fact, the same are denied for all the reasons set forth in Plaintiff s Complaint and in the Reply to Counterclaim, all of which are incorporated herein by reference thereto. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant as requested in Plaintiffs Complaint. REPLY TO COUNTERCLAIM Admitted. 2. Admitted. 1 It is specifically denied that Counterclaim Defendant failed in any way to perform '_AW 0MCES ?NELSAKER & NNEMAN, P.C. its contract in a good and workmanlike manner or that it is in any way liable to Counterclaim Plaintiff' in any amount of money. On the contrary, Counterclaim Defendant performed its contract in a good and workmanlike manner and is entitled to judgment against Counterclaim the reasons and averments as set forth in the Complaint filed herein and incorporated by reference thereto. Counterclaim Defendant further answers the subparagraphs to paragraph 3 as (a) It is denied that Counterclaim Defendant (Plaintiff) improperly calculated the requirements for the temperature control. On the contrary, Counterclaim Defendant properly computed the requirements based upon the manufacturer's specifications for the use of existing evaporators as provided by Counterclaim Plaintiff. For the same reasons, the 30-ton condenser was properly sized and installed to meet the conditions of Counterclaim Defendant's contractual undertaking. It is denied that the sculpturing was not completed prior to the scheduled opening or that Plaintiff (Counterclaim Defendant) caused any delay. On the contrary, the sculptures were completed and the show opened on the announced date. It is denied that any dangerous conditions occurred with regard to walkways as the result of Counterclaim Defendant's work or materials. On the contrary, water in the walkways occurred from the melting of ice shavings resulting from the carving of sculptures, a condition reasonably foreseeable under the conditions described below. After reasonable investigation, Counterclaim Defendant is without LAW OFFICES NELSAKER & 7NNEMAN, P.C. knowledge or information sufficient to form a belief as to the truth of the averment of a carver's fall and injury and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029 (c), proof of which is demanded at trial, if relevant. 5 It is denied that the cooling system implemented by Plaintiff (Counterclaim Defendant) was unable to cool the building below 32°. On the contrary, said system as designed and installed was fully capable of so cooling the structure. By way of further response, it is averred that any alleged "melting" was the result of matters beyond Plaintiff's (Counterclaim Defendant's) control, including interference with temperature controls by third parties, above-freezing outdoor temperatures, uncontrolled introduction of intrusive heat from such sources as open exterior doors, interior use of automotive equipment (e.g. forklifts) with engine and exhaust heat, and high wattage electrical lighting. (b) It is admitted that Plaintiffs (Counterclaim Defendant's) installation of a LAW OPJCES NEL13AKER & INNEMAN, P.C. 100-ton cooling unit was done without authority from LMcD, trading as Ice 4 U 2 C, and it is more specifically denied that Plaintiff (Counterclaim Defendant) was required to obtain authority from said LMeD, trading as Ice 4 U 2 C, since Plaintiff s (Counterclaim Defendant's) contract was with Damenti's Incorporated, the Counterclaim Plaintiff herein. It is further denied that the installation of such ancillary equipment was the result of Plaintiff's (Counterclaim Defendant's) failure to calculate the cooling requirements. On the contrary, installation of the additional equipment was necessary because of the matters beyond Plaintiff s (Counterclaim Defendant's) control as averred in paragraph 3(a) above which are incorporated herein by reference thereto. By way of further response, it is averred that the procurement and installation of such equipment was done only after consultation with Kevin McDonald who agreed to the additional cost and offered to provide advance funding therefor. 6 (c) It is denied that Counterclaim Defendant failed to maintain the 100-ton cooling equipment and it is more specifically denied that Counterclaim Defendant had any responsibility to maintain the equipment on a continuous operating basis, such as providing fuel to operate the diesel powered generator. On the contrary, the operating responsibility belonged to Counterclaim Plaintiff who failed on occasions to provide the necessary diesel fuel, thereby shutting down the equipment. In addition, persons unauthorized by Counterclaim Defendant attempted unsuccessfully to computerize the controls for this and other equipment, resulting in malfunctions of the system installed by Counterclaim Defendant. It is further denied that the equipment required repair. It is further denied that the alleged nighttime event was the result of any matter attributable to Counterclaim Defendant. On the contrary, the event was caused by someone other than Counterclaim Defendant improperly turning-off the original 30-ton cooling equipment contrary to Counterclaim Defendant's operating instructions. (d) Denied. On the contrary, Counterclaim Defendant removed the 100-ton cooling unit on February 22, 2005, being the day after the closing of the ice sculpture show, with Counterclaim Plaintiff s full knowledge and understanding. (e) For all the reasons set forth hereinabove and in Plaintiff's Complaint, it is I LAW oFFlCEs 5NEL13AKER & !ENNEMAN, P.C. denied (1) that Counterclaim Defendant agreed or contracted with Ice 4 U 2 C, (2) that it failed to provide the required refrigeration services and equipment as contracted and (3) that it charged Ice 4 U 2 C for anything. It is further denied that "budget parameters" were disclosed to Counterclaim Defendant and that Counterclaim Defendant was limited to any such undisclosed "parameters". On the contrary, it is averted that Counterclaim Defendant's contract with Defendant Damenti's Incorporated (as averred in the Complaint) was on a time and materials basis, without reference to or limited by "budget parameters". (k) It is denied that Counterclaim Defendant was unable to provide consistent low temperatures and it is further denied that there were "continued complaints from persons affiliated with Ice 4 U 2 C". On the contrary, Counterclaim Defendant provided the required equipment in accordance with its contract with Defendant Damenti's Incorporated, and that any deviation in temperature was due to reasons beyond its control as averred in paragraphs 3(a) and 3 (b) hereinabove and incorporated herein by reference thereto. (1) It is denied that any admission was made as alleged. On the contrary, Counterclaim Defendant's president, Forest Baker, Jr., explained in the pre-contract negotiations with Counterclaim Plaintiff's principals that because of the aged existing equipment, the uncertainty of the insulating integrity of the building and possible other unknown factors, no fixed price or limitation on cost was possible and, therefore, Counterclaim Defendant could only proceed on a time and materials basis. Accordingly, when conditions developed necessitating the use of the ancillary 100-ton unit, such implementation was a further step in the time and materials terms, not an admission of deficiency by Counterclaim Defendant, but a continuing performance of Counterclaim Defendant's contractual undertaking. 4. For all the reasons averred hereinabove, it is denied that Counterclaim Defendant LAW OFFJCES 3NELBAKER & 'ENNEMAN, P.C. failed to perform its contractual obligations. It is further denied that the Ice 4 U 2 C exhibition closed three weeks earlier than scheduled and that any monetary loss was sustained by reason of alleged early closing. On the contrary, the exhibition was advertised to close on February , 2005, and did so according to the published schedule. 5. For all the reasons set forth hereinabove, it is denied that Counterclaim Defendant to perform its contractual undertakings or that any losses were incurred because of any d failure of performance. After reasonable investigation, Counterclaim Defendant is at information or knowledge sufficient to form a belief as to truth of the remainder of the in paragraph 5 and, therefore, the same are deemed to be denied pursuant to Pa. 1029 (c), proof of which is demanded at the trial, if relevant. The averments in paragraph 6 should be stricken for insufficient specificity and insufficiency. Alternatively, for all the reasons set forth hereinabove, it is denied that Counterclaim Defendant improperly performed services or that Counterclaim Plaintiff suffered any loss for any alleged services improperly performed. The content of paragraph 7 is a series of conclusions of law to which no response is required and, therefore, the same are deemed to be denied. For all the reasons set forth hereinabove, it is denied that Counterclaim Plaintiff has suffered any damages at the fault of Counterclaim Defendant, and the claim for set-off is unwarranted and denied. WHEREFORE, Counterclaim Defendant requests the Court to dismiss Counterclaim Plaintiff's Counterclaim and to enter judgment on the Counterclaim in favor of Counterclaim Defendant and against Counterclaim Plaintiff. '. AW OFFICES »EL9AKER & "NNEMAN, P.C. 9 NEW MATTER By way of further response and defense to Counterclaim Plaintiffs Counterclaim, Defendant avers as follows: Counterclaim Plaintiff's Counterclaim fails to state any cause or causes of action which the relief sought may be granted. 9. Counterclaim Plaintiff, Damenti's Incorporated, has denied entering into any relationship with Counterclaim Defendant. 10. Counterclaim Plaintiff, Damenti's Incorporated, having denied any contractual with Counterclaim Defendant, lacks standing to claim damages against Counterclaim Defendant in this counterclaim action and/or is not the real party in interest capable of maintaining any claim for damages against Counterclaim Defendant based upon the allegations set forth in the Counterclaim. 11. Any damages claimed by Counterclaim Defendant in its Counterclaim are beyond the reasonable consideration or contemplation of the parties. 12. If Counterclaim Plaintiff sustained damages from the malfunction of refrigeration equipment (which Counterclaim Defendant denies), such damages were caused by the action of third persons seeking to control such equipment without Counterclaim Defendant's consent and beyond its control. 13. Any deterioration of ice after Counterclaim Defendant's installation of the LAW OFFICES ?NELBAKER & _NNEMAN. P.C. refrigeration equipment was caused by factors beyond Counterclaim Defendant's control, including, but not limited to: (a) Unanticipated high outdoor temperatures. (b) Open exterior doors admitting warmer outdoor air. 10 (c) Use of motorized equipment inside the project building emitting engine and exhaust heat. (d) Use of high wattage electric lighting. (e) Shut down of refrigeration equipment for lack of engine fuel to be provided by persons other than Counterclaim Defendant. (f) Shutdown of refrigeration equipment by third persons. (g) Malfunctions caused by persons unauthorized by Counterclaim Defendant in attempting unsuccessfully to computerize the controls of the refrigeration equipment. 14. Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's Answer, New Matter and Counterclaim. 15. Counterclaim Plaintiff made no complaint to Counterclaim Defendant as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's Answer, New Matter and Counterclaim. 16. The ice sculpture exhibition sponsored by Counterclaim Plaintiff was announced and advertised to be open for business between January 21, 2005 and February 21, 2005. IT Counterclaim Plaintiff caused a sizeable payment, to wit: $10,000.00, to be paid LAW OFFICES SNELBAKER & RENNEMAN, P.C. on account of Counterclaim Defendant's services on or about February 13, 2005, being approximately a week prior to the closing of the exhibition, said payment being made without any expression of dissatisfaction as to Counterclaim Defendant's work, materials, equipment, service or billings. I1 WHEREFORE, Counterclaim Defendant requests the Court to dismiss Counterclaim Plaintiff s Counterclaim and to enter judgment on the Counterclaim in favor of Counterclaim Defendant and against Counterclaim Plaintiff. SNELBA & BRENNEMAN, P.C. By ichard C. Snelbaker, Esquire PA. Supreme Ct. I.D. 06355. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Phone(717)697-8568 Attorneys for Plaintiff LAW OFFICES SNELBAKER & 'RENNEMAN, P.C. 12 VERIFICATION I, Forest R. Baker, Jr., do hereby verify as follows: that I am the President of Air Conditioning Refrigeration Services, Inc., the Plaintiff and Counterclaim in the foregoing Reply to New Matter, Reply to Counterclaim and New Matter; that I am authorized to make this verification on behalf of the Plaintiff and Counterclaim Defendant; that the facts contained in said Reply to New Matter, Reply to Counterclaim and New Matter within my personal knowledge are true and correct; that the facts contained in said Reply to New Matter, Reply to Counterclaim and New Matter not within my personal knowledge, I believe them to be true and correct based upon the information of others; and that I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unworn falsification to authorities. Forest R. Baker, rJr. Dated: July /9 , 2005 LAW OFRCES SSNEL13AKER & ZENNEMAN, P.C. CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiffs Reply to New Matter, Reply to Counterclaim and New Matter by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Richard C. Snelbaker, Esquire Snelbaker & Brenneman, P.C, 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff Dated: July 19, 2005 AW OFFICES VELBAKER & "NNEMAN. P.C. rv? n -tt ?"! c a i.. ?^ c_: -?, ? i??is; . 1:. ..n L7 ?-- ?i?,'_i p' v .'1 ?..????'Y'\ _ .. i'1 (','1 ..t .._ CJ JNA AIR CONDITIONING TION SERVICES, INC., Plaintiff, VS. INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE IN OPPOSITION TO MOTION OF DEFENDANT FOR LEAVE TO JOIN ADDITIONAL DEFENDANT AND RULE TO SHOW CAUSE AND NOW, comes the Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc., by its attorneys, Snelbaker & Brenneman, P.C., and responds to Motion of Defendant for Leave to Join Additional Defendant and the Court's Rule to Show Cause issued June 22, 2005, as follows: 1. Plaintiff opposes said Motion on the substantive grounds that the party proposed to be joined (LMcD,LLC, trading as "Ice 4 U 2 C") has no legal interest in these proceedings for all the reasons set forth in Plaintiffs Complaint, Plaintiffs Reply to Defendant's New Matter and Counterclaim and in Plaintiffs New Matter to Defendant's Counterclaim, all heretofore filed and incorporated herein by reference thereto. 2. Defendant is prevented by Section 362 of the United States Bankruptcy Code (I I LAW OFFICES SNELOAKER & 3RENNEMAN, F.C. U.S.C. § 362) from joining LMcD, LLC, as a party in the present proceedings, the said LMcD, LLC, a/k/a "Ice 4 U 2 C", having filed its Chapter 7 bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania, as docketed to case Number 5:05-bk-54237-JJT on July 28, 2005, as indicated on the attached Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors and Deadlines as served on the undersigned. Exhibit " J" WHEREFORE, the Plaintiff requests your Honorable Court to dismiss Defendant's and deny the relief sought. P.C. By Richard C. Snelbaker, Esquire Snelbaker &. Brenneman, P,C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff. -2- LAW OFFICES SNELSANER & 7ENNEMAN, P.C. 7 UNITED STATES BANKRUPTCY COURT A chapter 7 bankruptcy case concerning the debtor(s) listed below was filed on MM5. may be a creditor of the debtor. This notice lists important deadlines. You may want to consult an attorney to protect your rights. loeuments filed in the case may be inspected at the bankruptcy clerk's office at the address listed below. (name(s) used by the debtor(s) in the last 6 years, married, maiden, trade, and address): Case Number. Social Securityfraxpayer ID Nos.: 5:05-bk- 7- JT 33-1103794 Anomey for Debtor(s) (name and address): Bankruptcy Trustee (name and address): Anthony 7 Lucadamo Robert N. Opel, 11 (Trustee) Kemedy andlucademo PC 400 Third Avenue, Suite 316 200 Weal Chapel Street Kingston, PA 18704-5816 Hazleton, PA 18201 _ Telephone number: 570 288-7800 Date: 09/14/2005 i Location: Courtroom #3. Max Rosenn Time: 10:00 AM South Main Stra The filing of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtors property. If you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized. Iras of the Bankruptcy Clerk's Office. Bankruptcy Court Max U.S. Courthouse Clerk of the Bankruptcy Court: Roftm South Main Street Arlene Byers its-Barre, PA 18701 5:00 PM 1, EXPLANATI(1NC t nnaa non it ?,ni Filing of Chapter 7 A bankruptcy case under chapter 7 of the Bankruptcy Code (title 11, United States Code) has been filed in this court Hardens Case b or against the de s listed on the bout aide, and an order for relief has been entered. Crediton May Not Prohibited collection actions are listed in Bankruptcy Code 1362. Common examples of prohibited actions include Take Certain Actions cotu ung the debtor by telephone. mail or otherwise to demand repayment; feting actions to collect money or obtain property from the debtor reponessing the debtor's property; starting or continuing lawsuits of foreclosures. Meeting of Creditors A meeting of creditors is scheduled for the date, time and location listed on the front side. 77W debtor's repressamHsr a" b* present of the n eedrg to be twsdozed rsdtr aa% by the Instate and by cnrdbom Creditors are welcome to attend but we not requited to do so. The meeting may be continued and concluded at a later date without further notice. Do Not File a Proof of There does not appear to be any property available to the trustee to pay c editors. You therom should not fle a Claim at This Time proojojekin at this date. If it late appears that assets ate avauabk to pay caditors. you will be sent another notice telling you that you may file a proof of claim, and tellin u the deadline for film your proof of claim. Bankruptcy Clerk's Any paper that you file in this bankruptcy case should be filed at the bankrutcy clerk's office at the address listed Office on the front side. You may inspect all papers filed including the list of the debtor's property and debts. Legal Advice The staff of the bankruptcy clerk!& office cannot give legal advice. You may want to consult an attorney to protect our rights. - Refer to Other Side for Important Deadlines and Notices - RAPID DATA ACCESS: We encourage you to register with our Public Access to Court Electronic Records System "PACER" b visiting the PACER Home Pa at http://Damr.pw.uwourts.gov/. • For security reasons, oto identification may be reqWred to attend this meeting. COPY REQUESTS: To obtain copies of documents, send a written request to the Clerk's Office as listed on this notice. 11 ", xx7nRngiLn4a19 O 00 o. cr. cmc N w d M h y t„iiiijAhSS w u+ vP C W 4 CL. m 0 ? %, QN a? UuJ?mU o_oCD of ??a E" 2 W ywv u • bra tJ ?,?`? c . CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Plaintiffs Response in Opposition To Motion Of Defendant For Leave to Join Additional Defendant And Rule to Show Cause by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Richard C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff Dated: August 26, 2005 LAW O ICES SNELSAKER & BRENNEMAN, P.C. n o ? C.'- cr ` i•J •iQ Y' _ CI JIT) SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff VS. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM JURY TRIAL DEMANDED COUNTERCLAIM PLAINTIFF'S REPLY TO NEW MATTER OF COUNTERCLAIM DEFENDANT Counterclaim Plaintiff makes the following Reply to New Matter of Counterclaim Defendant as follows: 8. The allegations contained in paragraph 8 constitute conclusions of law to which no responsive pleading is required. 9. It is admitted that Counterclaim Plaintiff Damenti's incorporated has denied entering into any contractual relationship with Counterclaim Defendant. By way of further answer, Counterclaim Plaintiff has pleaded, in the alternative, that if it is found to have entered into a contract with Counterclaim Defendant, that in that event, and only in that event, is Counterclaim Defendant liable to it. 10. The allegations contained in paragraph 10 constitute conclusions of law to which no responsive pleading is required. 11. The allegations contained in paragraph 11 constitute conclusions of law to which no responsive pleading is required. 1 EXHIBIT K 12. The allegations contained in paragraph 12 constitute conclusions of law to which no responsive pleading is required. By way of further answer, and to the extent the allegations contained in paragraph 12 constitute factual averments, those averments are denied for the reason that Counterclaim Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of those allegations. 13. It is specifically denied that the deterioration of ice after Counterclaim Defendant's installation of refrigeration equipment was caused by factors beyond its control. On the contrary, Counterclaim Plaintiff answers the subparagraphs to paragraph 13 as follows: (a) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. High outdoor temperatures are and were reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures 2 to reduce the impact of unanticipated high outdoor temperatures; and (b) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Open exterior doors are and were reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact of open exterior doors emitting warmer outdoor air; and (c) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Use of motorized equipment was reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact 3 of the use of motorized equipment inside the project building emitting engine and exhaust heat; and (d) Counterclaim Defendant's undertaking was to provide subfreezing temperatures in the indoor area of the Ice 4 U 2 C exhibition, to be attended by the public, at a venue fully and completely inspected and examined by Counterclaim Defendant. Use of electric lighting was reasonably foreseeable by Counterclaim Defendant which failed to plan adequately to maintain subfreezing temperatures despite that contingency. By way of further answer and defense, Counterclaim Defendant failed to instruct Counterclaim Plaintiff with reference to measures to reduce the impact of use of high wattage electric lighting; and (e) Admitted in part and denied in part. It is admitted that the equipment shut down for lack of engine fuel, because the gauge mistakenly indicated fuel in the tank. It is denied that sufficient fuel was not present to operate the equipment. By way of further answer, Counterclaim Plaintiff avers that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of those allegations which are therefore denied; and 4 (f) The allegations in subparagraph (f) are denied for the reason that,after reasonable investigation, Counterclaim Plaintiff is without knowledge or information sufficient to form a belief as to the truth thereof; and (g) The allegations contained in subparagraph (g) are denied by Counterclaim Defendant for the reason that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of those allegations. 14. It is denied that Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's pleading. On the contrary, representatives of LMcD, LCC trading as Ice 4 U 2 C, advised Counterclaim Defendant that, despite its installation of equipment some two (2) weeks prior the opening date of the ice exhibition, the area to be cooled was approximately thirty-two (32) degrees, nowhere close to Counterclaim Defendant's predicted temperature of twenty (20) degrees. As a result of that complaint, Counterclaim Defendant opted to bring in temporary support equipment, which failed to work continuously throughout the exhibition, shutting down numerous times during its first twenty (20) days of operation, and necessitating regular emergency calls from 5 Forty Fort to Counterclaim Defendant's place of business in Mechanicsburg. 15. It is denied that Counterclaim Defendant received no complaints as to the quality of its work, materials, equipment, service or billings until the allegations in Counterclaim Plaintiff's pleading. On the contrary, representatives of LMcD, LCC trading as ice 4 U 2 C, advised Counterclaim Defendant that, despite its installation of equipment some two (2) weeks prior the opening date of the ice exhibition, the area to be cooled was approximately thirty-two (32) degrees, nowhere close to Counterclaim Defendant's predicted temperature of twenty (20) degrees. As a result of that complaint, Counterclaim Defendant opted to bring in temporary support equipment, which failed to work continuously throughout the exhibition, shutting down numerous times during its first twenty (20) days of operation, and necessitating regular emergency calls from Forty Fort to Counterclaim Defendant's place of business in Mechanicsburg. The complaints made to Counterclaim Defendant were made to its President, Forest R. Baker, Jr. 16. Admitted. 17. Admitted in part and denied in part. It is admitted that a payment in the amount of Ten Thousand and no/100 ($10,000.00) Dollars was made to Counterclaim Defendant on February 13, 2005. It is denied that the payment was made by the Counterclaim Plaintiff and on 6 the contrary, it is averred that the payment was made by representatives of LMcD, LLC trading as Ice 4 U 2 C. By way of further answer, the payment made was done so in good faith, and with the assurance that the Counterclaim Defendant would continue to provide services in cooling as originally agreed, and within the budget of Thirty Thousand and no/100 ($30,000.00) Dollars. It is denied that the payment was made without expression of dissatisfaction as to Counterclaim Defendant's work, materials and equipment. On the contrary, representatives of LMcD, LLC trading as Ice 4 U 2 C reminded the Counterclaim Defendant's President, Forest R. Baker, Jr. of the shortcomings of the performance of Counterclaim Defendant at the time of payment. WHEREFORE, Counterclaim Plaintiff demands that judgment be entered in its favor and against the Counterclaim Defendant. KENNEDY AND LUCADAMO, P.C. BY: Thamas L. Kennedy, Esquire I.D. # 01666 200 West Chapel Street Hazleton, PA 18201 Telephone: (570) 459-2440 7 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff Vs. DAMENTI'S INCORPORATED, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1621 CIVIL TERM Defendant JURY TRIAL DEMANDED V E R I F I C A T I O N I, KEVIN McDONALD, hereby certify that I am President of Damenti's Incorporated, Counterclaim Plaintiff, and that the facts set forth in the foregoing Counterclaim Plaintiff's Reply to New Matter of Counterclaim Defendant, are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: l ?' S K VIN McDONALD 8 !-:; CJ ?... ? ; ..Y c? C, ? 7 ? ? ?:?t ? '_ f-- v ? u_ ?-" C-? ?? k;l v .?rJ ?. I riavl - LI v n - V G. I - IJOCKOL ACp"I L rage L oL 4 CREDS, E-Filed, PreACT, 34111eld U.S. Bankruptcy Court Middle District of Pennsylvania (Wilkes-Barre) Bankruptcy Petition #: 5:05-bk-54237-JJT Assigned to., John J Thomas Date Filed: 07/28/2005 Chapter 7 Voluntary Asset LMcD LLC represented by Anthony .I Lucadamo 870 North Hunter Highway Kennedy and Lucadamo PC Mountaintop, PA 18707 200 West Chapel Street 570-788-2004 Hazleton, PA 18201 Tax id: 33-1103794 570 459-2440 Debtor Fax : 570 459-5140 aka Email: aucadamo@kenluc.com ICE4U2C Robert N. Opel, II (Trustee) represented by Robert N. Opel, II 400 Third Avenue, Suite 316 400 Third Avenue Kingston, PA 18704-5816 316 Park Office Building 570 288-7800 Kingston, PA 18704-5816 Trustee 570 288-7800 Fax : 570 288-7861 Email: robert.opel2@verizon.net Robert P. Sheils, Jr (Trustee) Sheils Law Associates, PC 108 North Abington Road Clarks Summit, PA 18411 570 587-2600 TERMINATED: 0811112005 Former Trustee United States Trustee PO Box 969 Harrisburg, PA 17108 (717) 221-4515 Asst. U.S. Trustee Filing Date # Docket Text 07!2812005 1 Chapter 7 Voluntary Petition. Filing fee due in the amount of $ 209.00 Filed by Anthony J Lucadamo of Kennedy and Lucadamo PC on behalf of LMcD LLC. (Lucadamo, Anthony) (Entered: 07/29/2005) EXHIBIT L https://ecf.pamb.uscourts.gov/c(,i-bi )9666-L820-1 10/24,22005 U, ,M_ rANI - Lt v G - v!./ - uocket Keport Page 2 of 4 07/28/2005 Receipt of Voluntary Petition (Chapter 7)(5:05-bk-54237) [misc,volp7a] ( 209.00) filing fee. Receipt number 1152788, amount $ 209.00. (U.S. Treasury) (Entered: 07/28/2005) 07/28/2005 2 Matrix tiled/Creditor List Uploaded Filed by Anthony J Lucadamo of Kennedy and Lucadamo PC on behalf of LMcD LLC (RE: related document(s)) ). (Lucadamo, Anthony) (Entered: 07/28/2005) 08/02/2005 Trustee Robert P. Sheils, Jr (Trustee) added to case.. (There is no image or paper document associated with this entry.) Filed by United States Trustee. (united states trustee(p), ) (Entered: 09/02/2605) 08/03/2005 Tentative Date for Meeting of Creditors. THIS IS SUBJECT TO CHANGE.. 9/14/2005 at 09:00 AM. (CB) (Entered: 08/03/2005) 08/11/2005 Rejection of Trustee's Appointment and Appointment of Successor Trustee. Robert P. Sheils, Jr (Trustee) terminated from the case. Trustee Robert N. Opel, II (Trustee) added to the case. (There is no image or paper document associated with this entry.) Filed by U.S. Trustee. (united states trustee(wp), ) (Entered: 09/11/2005) 08/19/2005 3 Request to BNC - Meeting of Creditors . 341(a) meeting to be held on 9/14/2005 at 10:00 AM Courtroom 43, Max Rosenn US Courthouse, 197 South Main Street, Wilkes-Barre, PA (GP) (Entered: 08/19/2005) 08/21/2005 4 BNC Certificate of Mailing of 341 Meeting Notice (Chapter 7) (RE: related document(s)3 ). Service Date 08/21/2005. (Admin.) (Entered: 08/22/2005) 08/30/2005 5 Notice of change to asset case: Clerk is to send notice to all creditors fixing a claims bar date Filed by Trustee. (opel, II(bz), Robert) (Entered: 08/30/2005) 08/31 /2005 6 Request to BNC - Notice setting claims bar date (RE: related document(s)5 ). Proofs of Claims due by 12/2/2005. (BS) (Entered: 08/31/2005) 09/02/2005 7 BNC Certificate of Mailing. (RE: related document(s)6 ). Service Date 09/02/2005. (Admin.) (Entered: 09/03/2005) 09/09/2005 8 Request to BNC - Meeting of Creditors Rescheduled . 341(a) meeting to be held on 10/14/2005 at 01:00 PM at Courtroom 43), Max Roserm US Courthouse, 197 South Main Street, Wilkes-Barre, PA. (EF) (Entered: 09/09/2005) 09/11/2005 9 BNC Certificate of Mailing. (RF: related document(s)8 ). Service Date 09/11/2005. (Admin.) (Entered: 09/12/2005) https://ecf. pamh. uscourts.gov/cgi-bin/DktRpt.pl'?3363 83801909666-L _82_0-1 10/24/2005 t'SBC PAM - LIVE - V2.7 - Docket Report Page 3 of 4 09/16/2005 10 Withdrawal of Claim(s): 91 in the amount of $480.00 Filed by Fred Pierantoni . (BS) (Entered: 09/16/2005) 10/03/2005 11 Notice of Removal by Richard Schriebmaier, Kevin McDonald. Filing Fee due in the amount of $ 250.00 (Attachments: # 1 Cover Sheet# 2 Exhibit "A"# 3 Exhibit "B"# 4 Exhibit "C"# 5 Exhibit "D"# 6 F,xhibit "E"# 7 Exhibit "F") (BS) DOCKETED IN ERROR. Should not have been docketed as an entry. Opened as an Adversary Proceeding 5-05-ap-50249. Modified on 10/4/2005 (SF). (Entered: 10/03/2005) 10/03/2005 Adversary Proceeding Filed No. 5:05-ap-50249. (Notice of Removal) (BS) (Entered: 10/05/2005) 10/04/2005 12 Corrective Entry- Notice of Removal entered in error, it has been filed as Adversary Proceeding 5-05-ap-50249 (RE: related document (s)1I ). (BS) (Entered: 10/04/2005) 10/06/2005 13 Application to appoint himself/herself or their law firm as Attorney Filed by Trustee. (Attachments: # 1 Affidavit of Disinterestedness # 2 Proposed Order # 3 Certificate of Service)(opel, I1(bz), Robert) (Entered: 10/06/2005) 10/17/2005 14 Certification that 341 Meeting of Creditors on 10/14/05 was Held and continued generally while Trustee investigates the availability of assets for liquidation for distribution to unsecured creditors. (There is no image or paper document associated with this entry.). (opel, 1I(bz), Robert) (Entered: 10/17/2005) 10/19/2005 Adversary Proceeding Filed No. 5:05-ap-50259. (Notice of Removal) Filed by Kevin McDonald rep by Michael G Oleyar (BS) (Entered: 10/20/2005) 10/20/2005 15 Order Granting Application of Trustee to appoint self as Attorney (RE: related document(s)13 ). (BS) (Entered: 10/20/2005) PACER Service Center Transaction Receipt 10/24/2005 1 1:44:15 PACER Login: mg0090 Client Code: I I F7 F 5:05-bk-94237-JJT H or Ent H] https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?336383801909666-I, 82 0-1 10/24/2005 V Jul. rtlivi - i,I V r- - vL. / - iIOCKCL KCpOrt Doc From: 0 Doc To: 99999999 Description: Docket Search Term: y Links: n Format: Report Criteria: HTMLfnt Billable Pages: ? Cost: 0.16 Paee 4 of 4 https://ecf.pamb.Liscotirts.gov/cgi-binlDktRpt.pl?336383801909666-L_82_0-1 10/24/2005 Michael G. Oleyar, Esq. Attorney I.D. 78264 OLEYAR BRADY P.C. 1261 N. Church Street Hazleton, PA 18202 570-455-6800 Tel 570-455-6900 fax Attorney for Defendant Damenti's Inc. SUSQUEHANNA AIR CONDITIONING : COURT OF COMMON PLEAS REFRIGERATION SERVICES, INC. CUMBERLAND COUNTY, PLAINTIFF PENNSYLVANIA V. Civil Action No. 1621 of 2005 DAMENTFS, INC. DEFENDANT NOTICE, OF REMOVAL NOTIFICATION OF REMOVAL Defendant Damenti's Inc. hereby gives notice that the attached Notice of Removal was filed on this day in the above captioned action in the United States Bankruptcy Court for the Middle District of Pennsylvania. Dated: ZA (C.,5 OLEYAR BRADY P.C By Michael (mil ,, Esq. Attorney I.D. 78264 1261 N. Church Street Hazleton, PA 18202 570-455-6800 Tel 570-455-6900 fax Attorney for Damenti's Inc. EXHIBIT M it ?1 ? i1 -{ - ?.is . ?i.l . ?...i i^ 4. ]` Michael G. Oleyar, Esq. Attorney I.D. 78264 OLEYAR BRADY P.C. 1261 N. Church Street Hazleton, PA 18202 570-455-6800 Tel 570-455-6900 fax Attorney for Defendant Kevin McDonald and Kevin McDonald t/a Damenti's Restaurant SUSQUEHANNA AIR CONDITIONING : REFRIGERATION SERVICES, INC. PLAINTIFF V. DAMENTI'S RESTAURANT, INC. RESTAURANT DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 1621 of 2005 NOTICE OF REMOVAL Certificate of Service- I certify that I, Mollie S. Oleyar, have served the foregoing Notification of Removal filed in Cumbarland County Prothonotary's office and the Notice of Removal filed in the U.S. Bankruptcy Clerk's office for the Middle District of Pennsylvania on the following, on this 26th day of October, 2005, via the means indicated: Certified Mail Return Receipt Richard C. Snalbaker, Esq. Snelbaker Brenneman & Spare, PC 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055-0318 Susquehanna Air Conditioning Refrigerator Services, Inc. 406 Darla Road Mechanicsburg, PA 17055-6659 Mollie S. Oleyar, Legal Assists Oleyar Brady, P.C. SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM DAMENTI'S INCORPORATED, Defendant JURY TRIAL DEMANDED PRAECIPE TO FILE COPY OF ORDER OF BANKRUPTCY COURT REMANDING CASE TO THIS COURT Please file the attached true and correct copy of the Order of Honorable John J. Thomas, Bankruptcy Judge, entered on November 15, 2005 in proceedings docketed to Bankruptcy Case No. 5-05-54237 in the United States Bankruptcy Court of the Middle District of Pennsylvania - Wilkes-Barre, remanding the case to this Court (the "court of origin") thereby extinguishing the removal thereof occasioned by the Notice of Removal heretofore filed. SNELBAKER & BRENNEMAN, P.C. By Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff LAW OFFICES Dated: November 18, 2005 SNELBAKER & BRENNEMAN, P.C. UNITED STATES BANKRUPTCY COURT -.? MIDDLE DISTRICT OF PENNSYLVANIA-Wilkes-Barre PA PROCEEDING MEMO/ORDER OF COURT/ DEBTOR (S CHAPTER: 7 (CLERK'S OFFICE U E ONLY) CASE NO.: 5-05-54237 mcD LLC ADV NO.: 5-05-ap-50263 AARRE Wi?KES CAPTION ^ P 5 Susquehanna Air Conditioning November 15, 2005 1 ° '- Refrigeration Services, Inc. HEARING S DATE: NOV 1 r gr,l?r Damenti's, Inc. : MATTER I / ,;'? Sr C;r Cou" ! ? Notice of Removal RECORD L_u u . } ,._.....-_ -- DOCUMENT NO: 1 NO RECORD ? Appearance(s) for Appearance(s) for Other Appearance(s) Other Appearance(s) Plaintiff/Movant Defendant/Res ondent Richard C Snelbaker, Esq Michael G Oleyar, Esq DECISION: -GRANTED _ DENIED -DENIED WITHOUT PREJUDICE -WITHDRAWN IN OPEN COURT SUSTAINED -APPROVED -TAKEN UNDER ADVISEMENT -OVERRULED Briefs Due from Proponent within days, otherwise, proceeding to be dismissed without prejudice. Briefs Due from Opponent within days. Settled - Stipulation within 30 days. Otherwise, proceeding to be dismissed without prejudice. V Findings and conclusions dictated at close of hearing incorporated by reference. _ Debtor to File Amended within days otherwise, upon certification - case is dismissed or - case is converted to Chapter 7. TRANSCRIPT ORDERED BY _ Reopen upon payment within 30 days of _ required filing fee _ an assessment in the amount of CONTINUED TO: (date) (time) (place) AT REQUEST OF TRIAL/FINAL HEARING DATE SET: Discovery deadline: Pre-Trial Motion deadline Stay Continued Until Final Hearing OTHER: l1 ti n i- V?YY?(3 Y?Cl? (1 S-P Li1.t.t Yl`f S 065C IYl NOTICE of this disposition is to be served by: IT IS SO NOTED ?S RDERED ? Courtroom Deputy JOHN J. THOMAS, Bankruptcy Judge (?? 1 Dated: 1 Mailing Required _ Mailing Not Required MOPA-PROCEED. "T-REV 1205 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Praecipe to File Copy of Order of Bankruptcy Court Remanding Case to This Court by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Richard C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 1 7055-03 1 8 Attorneys for Plaintiff Dated: November 18, 2005 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. r> <J .??? ?? ?G,. } {(? f'? ' is ?? .._. .4 `, VNA AIR CONDITIONING TION SERVICES, INC., Plaintiff, vs. S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule ?, Plaintiff, by its attorneys, Snelbaker & Brenneman, P.C., certifies that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. SNELBAKER & BRENNEMAN. P.C. By ichar . Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. (717) 697-8528 Attorneys for Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. Date: December 14, 2005 SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, vs. DAMENTI'S INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO: Thomas L. Kennedy, Esquire, (Kennedy & Lucadamo, P.C.) Attorney for Damenti's Incorporated, Defendant Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. SN7;;car(I;C. BRENNEMAN, P.C. By Snelbaker, Esquire 44 West Main Street P.O. Box 318 As attorney for Defendant, you have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 11 Date: October 2005 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff, Susquehanna Air Conditioning Refrigeration Services, Inc. SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC., Plaintiff, vs. DAMENTFS INCORPORATED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 2005 - 1621 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Robert N. Opel, II, Trustee in Bankruptcy 400 Third Avenue (Suite 316) Kingston, PA 18704 Background Information: Susquehanna Air Conditioning; Refrigeration Services, Inc. ("Plaintiff') has initiated a civil action against Damenti's Incorporated ("Defendant") as indicated in the above caption. In its pleadings, Defendant has attempted to avoid responsibility by alleging that the LMcD, L.L.C., trading as "ICE 4 U 2 C", is the responsible party (although it has not joined LMeD, L.L.C. as a party). We are advised that LMcD, L.L.C. is in bankruptcy and that Robert N. Opel, II, has been appointed as Trustee. In the course of pre-trial discovery, Defendant has objected to producing various documents alleging that they are in the possession or control of said Trustee. This subpoena is intended to produce those documents. Copies of Plaintiff's Complaint and Defendant's Answer with New Matter and Counterclaim are attached for reference and incorporated herein by reference thereto. LAW OFFICES SNEL6AKER & SRENNEMAN, P.C. SUBPOENA Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents or things at the office of the Plaintiff's attorneys, Snelbaker & Brenneman, P.C., 44 West Main Street, Mechanicsburg, Pennsylvania: A. Any and all documents, reports, notes, memoranda, summaries and/or records of any kind relating to any and all interviews of any and all parties and witnesses or individuals made by the Defendant in this action, any adjuster, insurer, or any other agent, employee or representative of the party to whom this request is directed, other than its attorneys. This item includes all reports, interviews, etc. conducted by representatives of Zurich Insurance Company relative to an alleged claim made by LMcD, L.L.C., which Defendant contends only the Trustee has the right to obtain. B. Any and all documents and records which support Defendant's claim for damages of $101,000.00 as averred in paragraph 3 of Defendant's Counterclaim. C. Any and all documents and records which support Defendant's claim of loss of $75,000.00 as averred in paragraph 4 of Defendant's Counterclaim. D. Any and all documents and records which support Defendant's claim of additional expense of $6,000.00 as averred in paragraph 5 of Defendant's Counterclaim. E. Any and all documents and records which support Defendant's claim of loss of $20,000.00 as averred in paragraph 6 of Defendant's Counterclaim. Any and all construction drawings and specifications for the "ICE 4 U 2 C" proj ect. LAW OFFICES SNELBAKER & G. The lease of the premises where the "ICE 4 U 2 C" project was held. BRENNEMAN, P.C. 11 H. Any and all financial records and documents relating to the "ICE 4 U 2 C" project, including, but not limited to, invoices, capital contributions, loans, leases, contracts with vendors, cancelled checks, check book registers, bank account statements, licenses, permits, ticket/admission records. Any and all copies of promotional materials and related records for the "Ice 4 U 2 C" project, including, but not limited to, advertising copy, media releases, invitations to/for sponsors, invoices from advertising outlets, e.g. newspaper, radio stations, television stations, magazines, billboards, signage, etc. Any and all payroll records for the "Ice 4 U 2 C" project, including, but not limited to, employment tax returns (federal, state, local), unemployment compensation returns, workers' compensation insurance premium statements and audits. K. Any and all documents constituting the "budget" averred in paragraph 80) of Defendant's Answer and in paragraph 3(e) of Defendant's Counterclaim. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. The subpoena was issued at the request of the following person: Richard C. Snelbaker, Esquire PA Supreme Court ID # 06355 Snelbaker & Brenneman,P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorney for Plaintiff BY THE COURT: By: (Prothonotary) Date: (Seal of the Court) LAW OFFICES SNELBAKER & BRENNEMAN, P.C. SNELBAKER (S BRENNEMAN, P.C. APROFESSIONAL CORPOkATION cop` , ATTORNEYS EYS A AT LAW W t*lv 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C. SNELBAKER P. O. BOX 318 KEITH O. BRENNEMAN 717-697-8528 FACSIMILE (717) 697-7681 October 24, 2005 "Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 Re: Susquehanna Air Conditioning Refrigeration Services, Inc. vs Damenti's Incorporated No: 2005-1621 Dear Mr. Kennedy: I hereby serve you with the required pre-issuance notice relative to subpoena records from the Trustee in bankruptcy. 44Z44_ Richard C. Snelbaker RCS:jjc Enclosure CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 by sending the same by first-class mail, postage paid, to the attorney for Defendant addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 4 ) a _4? - Ri and C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff Dated: December 14, 2005 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. i .s SUSQUEHANNA AIR CONDITIONING REFRIGERATION SERVICES, INC. Plaintiff vs DAMENTI'S INCORPORATED, Case No. 2005-1621 Defendant Statement of Intention to Proceed To the Court: COhjDITIONIrJG &FFRIGER.TI Nth SF%RVICES INC . Plaintiff, SUS UEHANNA AIR en o proce wt e a ove capdone matter. SNELB & , P. C. Print Name Richard C. Snelbaker Sign Narne B Date: September A2 . 2008 Attorney for Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. 11 Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff' must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. 14' CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Statement Intention to Proceed by sending the same by first-class mail, postage paid, to the attorney for addressed as follows: Thomas L. Kennedy, Esquire Kennedy and Lucadamo, P.C. 200 West Chapel Street Hazleton, PA 18201 chard C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorneys for Plaintiff September A , 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. f3 a a -xy tz;- to ...? ? ? Y? tV ? ? f f rf ? C> David D. Bueff Prothonotary KirkS. Sohonage, ESQ, Solicitor 0 5 C r, 7,-,50 1Wgnee K. Simpson I" Deputy Prothonotary Z!l i7 `, Irene E. Morrow 2 °Deputy Prothonotary 06 lice of the Prothonotary Cttmberfand County, Tennsykania .01-5 - ( L2 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square* Suite 100 * Carfsle, V 17013 * (717)240-6195 • IFa.? (717 240-6573