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HomeMy WebLinkAbout05-2839 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff, CIVIL ACTION ~ EQUITY No. 2005 - ~p 67 d'ucLc,-V2..( v. HERSHEYP ARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYP ARK STADIUM, Defendant. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff, CIVIL ACTION - EQUITY v. No. 2005 - HERSHEYF ARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYF ARK STADIUM, Defendant. COMPLAINT AND NOW comes the Plaintiff, Five Star Brass Productions, Inc., by and through its attorneys, ROMINGER, BAYLEY & WHARE, and flles the following Complaint in Equity, and in support thereof avers as follows: PARTIES 1. Plaintiff, Five Star Brass Productions, Inc. (hereinafter, "Five Star"), is a corporation incorporated under the laws of the Commonwealth of Pennsylvania having a principal place of business at 906 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Hersheypark Entertainment & Resorts Company, Inc., d/b/a Hersheypark Stadium (hereinafter "Stadium"), is a corporation incorporated under the laws of the Commonwealth of Pennsylvania having a principal place of business at 950 West Hershey Park Drive, Hershey, Dauphin County, Pennsylvania 17033. VENUE 3. Pursuant to Pennsylvania Rule of Civil Procedure 2179(a), venue in this Court is appropriate in that the contract - the breach of which gave rise to this cause of action - was entered into in Cumberland County. Five Star and Stadium concluded an oral contract for the former's 2005 event in September 2004; at that time, Stadium confirmed to Five Star that the facility was "booked" for Five Star on Sunday, August 7, 2005. Said oral agreement was made via a telephone call placed by an agent, employee, or representative of Stadium to Five Star's place of business in Cumberland County. FACTS 4. At all times relevant hereto, Five Star has been engaged in the business of organizing drum and bugle corps competitions. 5. At all times relevant hereto, Defendant Stadium has owned and operated a facility, located in Hershey, Pennsylvania, which is utilized in large part for sports and entertainment events. 6. Since approximately 1985, Five Star has contracted with Stadium on an annual basis to lease the Stadium premises for the purpose of hosting a regional drum and bugle corps competition. 7. Since the initial competition in approximately 1985, and through 2004, Five Star and Stadium entered into an oral agreement in the Fall of each year whereby the dates, terms, and logistics for the lease of the premises for the upcoming year's event were discussed and accepted by and between the respective parties; the established practice between the parties was to establish the exact fee for the rental of the premises immediately prior to the event, thereby taking into account final attendance figures. 8. For each annual event referenced in Paragraph 7, above, Stadium sent all documentation relating to each successive oral contract to Five Star's place of business in Cumberland County. 9. Based upon the mutual understanding of Five Star and Stadium, it was the custom and standard practice of the parties to execute a document which memorialized the agreement immediately prior to or, in some years, on the very date of the Five Star event at Stadium's facility. 10. In accord with past practice, Five Star and Stadium concluded an oral contract for the former's 2005 event in September 2004; at that time, Stadium confirmed to Five Star that the facility was "booked" for Five Star on Sunday, August 7, 2005. II. The oral agreement referenced in Paragraph 10, above, was made via a telephone call placed by an agent, employee, or representative of Stadium to Five Star's place of business in Cumberland County. 12. At a February 2005 meeting of the Hershey Capital Region Visitor's Bureau, Larry R. Hershman, the Chairman of Five Star, and Richard Weimer, a corporate officer of Defendant Stadium, met and, at that time, Mr. Weimer confirmed the date, general terms, and validity of the agreement between the parties regarding the August 7, 2005, event. 13. At the meeting referenced in Paragraph 12, above, Mssrs. Hershman and Weimer concluded a discussion of several hours whereby they discussed and planned an additional Five Star event on the Hershey premises, a three-day "World Championship" event which they envisioned as taking place every Memorial Day weekend. 14. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star commenced to announce and advertise the August 7,2005, event in a range of media outlets, to include print and online outlets. 15. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star printed and mailed advertising brochures to existing and potential patrons for said event on April 1 , 2005. 16. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star printed and mailed advertising brochures to every high school in the Commonwealth of Pennsylvania on April 14, 2005. 17. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star entered into contracts with Drum Corps Associates and Drum Corps International. 18. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star endeavored to arrange and did in fact secure the agreement of the United States Marine Corps Drum and Bugle Corps at said event. 19. In addition to the United States Marine Corps Drum and Bugle Corps participation, formal competitors who have confIrmed their attendance include the "Cabelleros," the "Brigadiers," the "Buccaneers," the "Bushwackers," the "Cavaliers," the "Bluecoats," "Magic of Orlando," the "Glassmen," "Carolina Crown," and "Southwind." 20. The drum and bugle corps referenced in Paragraph 19, above, are of signifIcant stature and notoriety, are comprised of many individuals, and, in part, intend to travel a signifIcant distance to the Five Star event scheduled at Defendant's facility on August 7, 2005. 21. In reliance upon the course of past dealings between the parties and based upon its acceptance of Stadium's offer to once again lease Hersheypark Stadium for its annual event, Five Star delivered a deposit to a private bus company which agreed to transport the United States Marine Corps Drum and Bugle Corps to said event. 22. Each of the participating drum and bugle corps is scheduled to perform elsewhere on Saturday, August 6,2005, and most are scheduled to proceed to another event in Boston immediately following the Hershey event. 23. Five Star commenced processing ticket orders on April 23, 2005; on that fust day, over 1,100 tickets were processed. 24. To date, over 1,600 tickets have been processed and sold; in light of the circumstances that gave rise to this action, the sale of an additional 400 plus tickets have been placed on "pending" status, a number that grows daily. 25. To date, Five Star has invested approximately $20,000.00 in planning and advertising its event and sold the aforementioned tickets at $18.00 each. 26. On or about May 4,2005, Richard Weimer, the aforementioned corporate officer of Defendant Stadium, contacted Five Star's Chairman, Larry Hershman, at the latter's Carlisle office; during the ensuing conversation, Mr. Weimer stated to Mr. Hershman that Stadium had a "problem" with the reservation for the facility for Five Star's scheduled August 7, 2005, event; thereupon he requested that Mr. Hershman email to him a description ofMr. Hershman's understanding ofthe agreement and related considerations. 27. Mr. Hershman complied with Mr. Weimer's request for an email message. 28. On or about May 24, 2005, Mr. Hershman received a telephone call from Matthew Ford, Stadium's Vice President and General Manager; Mr. Ford informed Mr. Hershman that the August 7, 2005, date was not available for the Five Star event. 29. Plaintiff Five Star brings the instant Complaint in equity not just to vindicate its own interests but, also, to safeguard the integrity of an event that has acquired significant cultural value and provides a unique artistic and educational opportunity to the south central Pennsylvania region. EOUITABLE RELIEF 30. Paragraphs 1-29 above are incorporated by reference as if fully set forth herein. 31. By virtue of its above-described conduct, the Defendant has, to the detriment and irreparable injury of the Plaintiff, willfully breached and otherwise done acts contrary to and in violation of the oral contract between the parties. 32. The aforesaid acts or omissions by the Defendant did not occur in good faith, constitute willful misconduct by the Defendant, and constitute omissions to do acts which are specifically required to be done under the oral contract between the parties - to wit, making available its premises to Five Star on August 7, 2005. 33. The aforesaid conduct by the Defendant has injured the Plaintiff by depriving it of rights to which it is entitled pursuant to the oral contract; by seriously undermining its reputation within its industry; and by wasting and diminution of the assets and opportunities of the Plaintiff to its irreparable harm and injury. 34. Although repeated demands have been made, the Defendant has willfully failed and refused, and, unless this Court acts, the Defendant will continue to willfully fail and refuse to honor the oral contract at issue. 35. Plaintiff Five Star is entitled to the specific performance by the Defendant of his obligations to Five Star pursuant to the oral contract, and unless the Defendant is so ordered, the Plaintiff will suffer irreparable harm and injury. 36. Plaintiff Five Star is entitled to have the Defendant enjoined from further violations of its obligations to the Plaintiff under the oral contract - to wit, making available its premises to Five Star on August 7, 2005 - and, unless the Defendant is so enjoined, the Plaintiff will suffer irreparable harm and injury. 37. Defendant Stadium's facility is the only forum in the region with the capacity to accommodate the size of the audience and number of competitors expected at the August 7, 2005, event; consequently, the loss ofthe facility as the site of the event irreparably harms Five Star and, too, deprives the community of an important artistic and educational opportunity. 38. Plaintiff Five Star does not have an adequate remedy at law. WHEREFORE, the Plaintiff respectfully requests judgment against the Defendant and the entry of an order preliminarily, and after fmal hearing, permanently: (a) enjoining the Defendant from refusing and failing to make available to the Plaintiff the above-referenced Stadium facilities on August 7, 2005, as required by the valid oral contract between the parties; (b) enjoining the Defendant from causing or authorizing the use of the Stadium premises on August 7, 2005, by any other party or for any use other than that contemplated by the Plaintiff and pursuant to the oral contract between the parties, absent the Plaintiff s express approval; (c) enjoining the Defendant from doing any other acts which violate the oral contract between the parties; (d) directing that the Defendant immediately perform and otherwise comply with its obligations to the Plaintiff under the oral contract; and (e) providing such other and further relief as the Court may deem just and proper. Respectfully submitted, ROMINGER, BAYLEY & WHARE 7 ---Michael J. Whare, Esquire Attorney I.D. No. 89028 Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Fax: (717) 241-6878 VERIFICATION .' I VERIFY that the statements set forth in the attached document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. ershman an at Productions, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff, CIVIL ACTION - LAW v. No. 2005 - HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYFARK STADIUM, Defendant. CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff do hereby certify that I this day served a copy of the Complaint at Equity upon the following by private process service, addressed as follows: HersheyPark Entertainment & Resorts Company, Inc. 950 West Hershey Park Drive Hershey, PA 17033 Dated: June 1,2005 Respectfully submitted, ROMINGER, BAYLEY & WHARE 7 ~l E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ----- "<< ~.{q (, ( D \1 ~ '~~ ,I (J: ll=. 1::... lr) -z- , ~ ~ c3 09 -C W _) ~ , -.J rN F ;;;, ~ . .'\ 1:: -+-- '---1:... - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff, CIVIL ACTION - EQUITY No. 2005 - ;J.PJ7' eL>~ L '--r~ v. HERSHEYFARKENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYFARK STADIUM, Defendant. PETITION FOR PRELIMINARY INJUNCTION AND NOW, this I" day of June, 2005, comes the Petitioner, Five Star Brass Productions, Inc., by and through its counsel, Rominger, Bayley, & Whare, and petitions this Court to preliminarily enjoin the Defendant from taking any action that is contrary to the Plaintiff's lease and use of Hersheypark Stadium on August 7, 2005, in the form of the attached proposed Order, and for the reasons set forth in the accompanying Complaint and memorandum oflaw fIled with this Petition. Respectfully submitted, ROMINGER, BAYLEY & WHARE MichaeIJ. Whare, Esquire Attorney I.D. No. 89028 Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Fax: (717) 241-6878 ':l-~;' () J) ~ ~ '- '"' ':D- ~. / ----~- 1..;" - ~.,,---- ,- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FNE STAR BRASS PRODUCTIONS, INC., Plaintiff, CNIL ACTION - LAW v. No. 2005 - 2839 Civil Term HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYP ARK STADIUM, Defendant. AMENDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Five Star Brass Productions, Inc., do hereby certifY that on June 1, 2005, a copy of the Plaintiffs Compla;nt;n Equ;ty was served upon HersheyPark Entertainment & Resorts Company, Inc., d/b/a HersheyPark Stadium, via private process server. Receipt of which was acknowledged by Greg Kwiatkowski, Security Supervisor on Wednesday, June 1,2005. A copy of the Affidavit of Service is attached hereto. Dated: June 3, 2005 Respectfully submitted, ROMINGER, BAYLEY & WHARE J -- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (71 7) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of Cumberland Common Pleas Court Case Number: 2005-2839 CIVIL TERM Plaintiff: Five Star Brass Productions, Inc. vs. Defendant: Heraheypark Entertainment & Resorts Company. Inc.. d/b/a Heraheypark Stadium For: Rominger, Bayley & Whare Received by ROMINGER LEGAL to served .on Hersi.!!lpark Entertainment & Resorta Company, Inc.. 950 Hersheypark Drlve'f,ershey. PA. I, /.-i VVI hie- , being duly sworn, depose and say that on the l"!:f day of _ JU1~ J .20.QSat :.:J:Z:J.m., executed service by delivering a true copy of the Compiaint in Equity; Petition for Preliminary InjGnction; Order Scheduling a Hearing in accordance with state statutes in the manner marked below: ( ) PUBLIC AGENCY: By serving the within-named agency. as of ( ) SUBSTITUTE SERVICE: By serving as ~~~~T~~\t1~:ll~~\~lj )g,~~~tj~ ~yJ ./ ( ) OTHER SERVICE: As described in the Comments below by serving as ( ) NON SERVICE: For the reason detailed in the Comments below. ~EN~~~~~/2~;~~~~~t i 'o~~::-~~t~t ~J~ lb<{(Ci!zi}r:,d I certify that I have no interest in the above action, am of legal which this service was made. ~~ and have proper uthority in the jurisdiction in \ "\ Subs\=ribed and Swom to before me on the /] if day ofc.XU,\JL.. , J cxY, by the affiant who is person.ally known to me. -.-j / PROCESS SERVEFt Appointed in accordance with State Statutes COMMONWEA"TH OF PENNSY"VANIA NelIa.al Seal Tammie ". Peters, Notary Public South Middleton Twp.. Cumberland County My Commission EXjJires Sepl9, Member, Pennsylvania Association Of Notaries ROMINGER LEGAL 48 W. High St. P.O. Box 1148 Carlisle. PA 17013 (717) 960-9260 Our Job Serial Number: 2005000180 C 1992-2005 DatlIblse Services, Inc. - Process Server's Toolbox V5.5i ------ Greg Kwiatkowski HERSHEY Security Supervisor HERSHEY Entertainment Complex 'ii 100 W. Hersheypark Drive Hershey, PA 17033 Ii!.N T E R T A I N MEN T Pho..: 17171534-3874 FAX: 1717) 534-3143 e-m..il: gkwiatkowski@HersheyPA.com 8 ...., ~ = """ :.~, en \J(n '- :r ntnO', c:: rn:D Z.:r.l :z: :Be Zl I o>"}' -=<.<-:;" w Db ~C~ ~~ ;#;c ..., o:ii ..c.. ,-. ::Jj: 5~ j> -' <P- c ~ ~ Co) ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff v. CIVIL ACTION - EQUITY NO. 2005-2838 CIVIL TERM HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a HERSHEYPARK STADIUM, Defendant PRELIMINARY OBJECTIONS OF DEFENDANT HERSHEY ENTERTAINMENT & RESORTS COMPANY Defendant Hershey Entertainment & Resorts Company, Inc. ("HE&R"), by its attorneys, McNees Wallace & Nurick LLC, hereby submits the following Preliminary Objections to the Plaintiff's Complaint. In support thereof, HE&R avers as follows: 1. Plaintiff, Five Star Brass Productions, Inc. ("Five Star"), commenced an action in equity, seeking a mandatory preliminary injunction, arising out of HE&R's alleged breach of an oral contract to lease HERSHEYPARK Stadium ("Stadium") to Five Star for the purpose of hosting a regional drum and bugle corps competition on August 7, 2005, by filing a Complaint on June 1, 2005 ("Equity Complaint"). 2. In its equity action, Plaintiff alleges that it does not have an adequate remedy at law. (Equity Complaint, 'If 38). 3. On June 1, 2005, Plaintiff also commenced an action at law by filing a Complaint ("Complaint at law"), arising out of the same events that are the basis for Plaintiff's action in equity. 4. In its action at law, Plaintiff is seeking damages for Breach of Contract (Count I), Fraudulent Misrepresentation (Count II) and Detrimental Reliance (labeled as Count IV in the Complaint). First Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(8) Full. Complete and Adeauate Non-statutory Remedv at Law 5. Paragraphs 1-4, above, are incorporated herein by reference. 6. In its action in equity, Plaintiff is seeking a mandatory preliminary injunction: (a) enjoining HE&R from refusing and failing to make available to the Plaintiff the Stadium on August 7. 2005; (b) enjoining HE&R from causing or authorizing the use of the Stadium on August 7,2005, by any other party or for any use other than that contemplated by the alleged oral contract between Plaintiff and HE&R; (c) enjoining HE&R from doing any other acts which violate the alleged oral contract between the parties; and, (d) directing that HE&R immediately perform and otherwise comply with its obligations to the Plaintiff under the alleged oral contract. 7. Plaintiff alleges that it does not have an adequate remedy at law. (Equity Complaint, ~ 38). 8. The essence of Plaintiffs alleged damages include money lost in ticket sales (Equity Complaint, ~ 25), the wasting and diminution of the Plaintiff's assets (Equity Complaint, ~ 33), and harm to its reputation (Equity Complaint, ~ 33). -2- 9. Plaintiff also alleges that equitable relief is warranted because the community would be deprived of an important artistic and educational opportunity if its request for a preliminary injunction is denied. (Equity Complaint, ~ 37). 10. An injury is regarded as irreparable, and therefore not capable of being remedied by a monetary award, if it will cause damage which can be estimated only be conjecture and not by an accurate pecuniary standard. Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. Ct. 2000). 11. It is not enough for the Plaintiff to establish that the harm is serious or substantial; the harm must be so peculiar in nature that money cannot compensate for the harm. Orson, Inc. v. Miramax Film Corp., 836 F.Supp. 309, 311 (E.D. Pa. 1993). 12. None of the damages alleged by Plaintiff are so peculiar in nature that money cannot compensate for the harm. 13. On the contrary. each alleged harm, if any, will be able to be calculated with reasonable certainty. 14. Further support and legal authority for this principle is found in HE&R's Brief in Opposition to Plaintiffs Petition for Preliminary Injunction, filed on June 9, 2005. WHEREFORE, Defendant Hershey Entertainment & Resorts Company, Inc. respectfully requests that the Court sustain its First Preliminary Objection pursuant to Pa.R.C.P. 1028(a)(8) and dismiss Plaintiff's Complaint in equity based on the existence of a full, complete and adequate non-statutory remedy at law. -3- 15. 16. 17. a.m. 18. 19. law. 20. Second Preliminary Objection Pursuant Pa.R.C.P. 1028(a)(6) Pendency Of A Prior Action Paragraphs 1-14, above, are incorporated herein by reference. Plaintiff filed its action at law on June 1, 2005, at 11 :02 a.m. Plaintiff subsequently filed its action in equity on June 1, 2005. at 11 :06 Plaintiff in the action sub judice is also the Plaintiff in the action at law. Defendant in the action sub judice is also the Defendant in the action at Plaintiffs action in equity raises identical questions as its action at law regarding whether HE&R breached an alleged oral agreement to lease the Stadium to Five Star for the purpose of hosting a regional drum and bugle corps competition on August 7, 2005. 21. Both the action in equity and the action at law are premised on the same rights of the same parties. 22. Because of the duplicative nature of the action in equity and the previously filed action at law, the continued litigation of the action in equity would waste judicial resources and would violate the doctrine of judicial economy. 23. The litigation of the action in equity along with the action at law would demand needlessly duplicative effort by the Plaintiff and the Defendant. 24. The litigation of the action in equity along with the action at law creates a risk of inconsistent decisions from this Court. -4- WHEREFORE, Defendant Hershey Entertainment & Resorts Company, Inc. respectfully requests that the Court sustain its Second Preliminary Objection pursuant to Pa.R.C.P. 1028(a)(6) and dismiss Plaintiff's Complaint based on the pendency of a prior action. McNEES WALLACE & NURICK LLC By Q~~M~. aive F ee enberg Pa. 1.0. No. 23152 Carol A. Steinour Pa. I.D. No. 55969 Kimberly A. Selemba Pa. 1.0. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Hershey Entertainment & Resorts Company, Inc., d/b/a Hersheypark Stadium Dated: June 10, 2005 -5- L CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by hand delivery upon the following: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 (YA~ Dated: June 10,2005 D c " ..~.~. , ...r~\' \l,~ i,.::,\ .<;';:;~ \' 1f1 ,':~' ';/ "'. -:.;.\ ; \,L_ ", ~; (:', ~> ~;" ~<~ :..!. .-' ~~ <P 'c?, ""...,. ...- -- o ..0, """ ~ -- .' Q, -:::;!-n ff.<;:;j -;,\q ~~q, "~~;;)"}; l~t' "tn V) ";.:-\ ",~ ',k o <,). ,"-, ,.., " = r;;; ~:~;; ,-,,> en L":--~ L :t c..-: n1:D ~ .,.,fTi -""" 'Oy (:)CJ ::':c',," :~:2 :f.i :x \-?c5 CXl (:Sm w .:;! :';0 (.fJ -< FIVE STAR BRASS PRODUCTIONS, INe. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA V. HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a HERSHEYP ARK STADIUM NO. 2005 - 2839 CIVIL TERM ORDER OF COURT AND NOW, this 14TH day of JUNE, 2005, after hearing, the Plaintiffs request for a Preliminary Injunction is DENIED. Edward E. Guido, J. Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pa. 17013 Harvey Freedenberg, Esquire Carol A. Steinour, Esquire 1 00 Pine Street P.O. Box 1166 Harrisburg, Pa. 17108-1166 :sld IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff v. CIVIL ACTION - LAW NO. 2005-2839 CIVIL TERM HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a HERSHEYPARK STADIUM, Defendant DEFENDANT'S MOTION TO QUASH THE SUBPOENA DIRECTED TO FRANKLIN A. MILES. JR. Defendant Hershey Entertainment & Resorts Company ("HE&R") by its counsel McNees Wallace & Nurick LLC, hereby moves, pursuant to Pa.R.C.P. No. 234.4(b), to quash the subpoena to testify in this matter issued to Franklin A. Miles, Jr., Vice- President, Secretary & General Counsel of HE&R ("Mr. Miles"). In support whereof, HE&R states as follows: Backqround 1. This is an action for breach of contract in which Plaintiff Five Star Brass Productions, Inc. ("Five Star") seeks the extraordinary remedy of a mandatory preliminary injunction against HE&R. 2. HE&R owns and operates HERSHEYPARK Stadium ("Stadium"). 3. Beginning in approximately the mid-1980s, Five Star leased the Stadium for a single day each year for a drum and bugle corps competition, usually held in July. 4. In every year in which Five Star leased the Stadium for the competition, the parties entered into a written lease agreement. 5. In September 2004, Five Star proposed the date of August 7, 2005 for the 2005 competition to HE&R. 6. HE&R placed a "hold" on that date, in anticipation of sending out the proposed written agreement in the spring of 2005. 7. Based upon the parties' course of dealings, Five Star should have understood, but claims not to have understood, that the August 7, 2005 date was tentative, and that it would not be secured until the written lease agreement was signed. 8. In early May 2005, through its concert promoter, Electric Factory Concerts, HE&R was offered an opportunity to host the popular singing group Destiny's Child in connection with that group's major North American tour. 9. The date offered for the Destiny's Child concert was August 7,2005. 10. HE&R informed Five Star that August 7, 2005 was no longer an acceptable date for the drum and bugle competition. 11. Five Star subsequently filed this action for equitable relief, claiming that HE&R breached an oral contract with Five Star to lease the Stadium to it on August 7, 2005. Five Star also commenced an action at law (No. 2005 - 2838 Civil Term), seeking damages for breach of contract, fraudulent misrepresentation and detrimental reliance. 12. A hearing on Five Star's Petition for a Preliminary Injunction has been set for Friday, June 10, 2005. at 1 p.m. -2- The Subpoena to Mr. Miles 13. Mr. Miles is the Vice-President, Secretary and General Counsel of HE&R. 14. On June 8, 2005, Five Star served a subpoena on HE&R requiring Mr. Miles' testimony at the Preliminary Injunction hearing on June 10, 2005 (the "Subpoena"). 15. Five Star has indicated to HE&R's counsel that Mr. Miles is needed at the hearing to testify as to: 1) the profit that HE&R normally earns for events at the Stadium; and, 2) the amount of the loss HE&R will suffer if the Destiny's Child concert does not occur on August 7, 2005. 16. Five Star contends that Mr. Miles is the appropriate representative from HE&R to testify as to these matters because Mr. Miles recently sent a letter to the editor of the Harrisburg Patriot News, in which he stated that "Venues such as HERSHEYPARK Stadium... do not control ticket prices for concerts, and receive but a small percentage of the gross ticket sales." "Hershey Entertainment is Largest County Taxpayer," Harrisburg Patriot News, Saturday, June 4,2005. Grounds for Motion to Quash 17. There is no reasonable basis for Five Star's Subpoena directed to Mr. Miles. 18. HE&R has previously indicated that it will have two witnesses at the hearing who can testify to the profit that HE&R normally earns for events at the Stadium and to the amount of the loss HE&R will suffer if the Destiny's Child concert does not occur. -3- 19. HE&R will produce Matt Ford ("Mr. Ford"), Director of Entertainment and Special Events for HE&R, to testify at the hearing. 20. HE&R will also produce Richard Weimer ("Mr. Weimer"), Booking and Events Manager for HE&R, to testify at the hearing. 21. In their respective positions, Mr. Ford and Mr. Weimer deal, on a daily basis, with issues related to booking performers for the Stadium, negotiating contracts with the performers, and calculating the profitability of such arrangements to HE&R. 22. Both Mr. Ford and Mr. Weimer have knowledge of the profit percentage HE&R normally earns on events at the Stadium, as well as the particular profit and loss possibilities for the Destiny's Child concert scheduled for August 7,2005. 23. As Mr. Ford and Mr. Weimer regularly deal with issues related to the profitability of the Stadium, they have greater knowledge regarding the matters into which Five Star seeks to enquire than does Mr. Miles. 24. Five Star was well aware of Mr. Ford and Mr. Weimer's scheduled attendance at the hearing at the time it issued the Subpoena to Mr. Miles. 25. Mr. Miles is an officer in a large entertainment company who has many business commitments each day. 26. Further, Mr. Miles has an important family commitment in the afternoon of June 10, 1005, and it would cause him great personal hardship to be unable to attend the event. -4- 27. Given that HE&R has indicated to Five Star that it will have corporate representatives present at the hearing who can testify as to the matters into which Five Star seeks to enquire, Five Star's Subpoena directed to Mr. Miles has no purpose other than to harass and inconvenience an officer of HE&R. 28. Rule 234.4(b) permits the Court to enter an order quashing a subpoena if the subpoena subjects the witness to unreasonable annoyance, embarrassment, oppression, burden or expense. See Pa.R.C.P. No. 234.4(b). 29. In this case, the Subpoena subjects Mr. Miles to unreasonable annoyance and burden in that he will have to forego other obligations to be present at a hearing to testify as to matters about which he has no unique or useful knowledge. 30. Further, the Subpoena is technically deficient in that it has been issued in the action at law, Docket No. 2005 - 2838 Civil Term, rather than the instant proceeding pursuant to which the hearing is to be held. Moreover, the proper method of securing the attendance of the managing agent of a party is through the issuance of a Notice to Attend, not a subpoena. See Pa.R.C.P. No. 234.3. 31. For these reasons, it is appropriate for the Court to enter an order pursuant to Pa.R.C.P. No. 234.4 vacating and quashing the Subpoena. -5- - WHEREFORE, Defendant Hershey Entertainment & Resorts Company requests that the Court quash the subpoena directed to Franklin A. Miles, Jr. Vice-President Secretary & General Counsel of Hershey Entertainment & Resorts Company. McNEES WALLACE & NURICK LLC By G.c~.~ Harvey Freedenberg Pa. 1.0. No. 23152 Carol A. Steinour Pa. 1.0. No. 55969 Kandice J. Giurintano Pa. 1.0. No. 86345 Kimberly A. Selemba Pa. 1.0. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: June 9,2005 Attorneys for Defendant Hersheypark Entertainment & Resorts Company, Inc., d/b/a Hersheypark Stadium -6- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by hand delivery upon the following: Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 JVYhiJt~ Michele Beery, Secr ry to Carol A. Steinour Dated: June 9,2005 r-> ~ c,.;::., cJ' c~ ~i: o -0 .-\ -:r:. -n (1'-- c:::. ~J\" -Dt? ::j c:;;, .J,~, ~."f') ()~;; .:;~ i~f\ ..~~ -,..". -~~ \ ...0 -0 ....".. _Ji... .C- - c.J1 FIVE STAR BRASS PRODUCTIONS, INe. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a HERSHEYP ARK STADIUM : NO. 2005 .. 2839 CIVIL TERM ORDER OF COURT AND NOW, this 14TH day of JUNE, 2005, after hearing, the Plaintiffs request for a Preliminary Injunction is DENIED. Edward E. Guido, J. ~arl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pa. 17013 .H"arvey Freedrmberg, Esquire Carol A. Steinour, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, Pa.. 17108-1166 ~dJ ,\ 0\9 ,...., "" ;._.: = 0 '-.,~ = ." "--," Cn c:...... -< , c::: :r:.,., ~ m- 'L.._ "hi '~.'-' ". -"'y .;:- c:> _ , . , :::iQ ~' .' ( ::,':;IJ t"~:D -:;,;r J;; '70 5:~ ~{ CO> [~) n1 -.-1 ..4 W ~: -< ,n Ul -< :sld IN THE COURT OF COMMON P'LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FIVE STAR BRASS PRODUCTIONS, INC., Plaintiff, CNIL ACTION - LAW v. No. 2005 - 2839 HERSHEYPARK ENTERTAINMENT & RESORTS COMPANY, INC., d/b/a/ HERSHEYPARK STADIUM, Defendant. PRAECIPE TO WITHDRAW Please discontinue the above captioned matter without prejudice on behalf of the Plaintiffs. Respectfully submitted, RomiDi~er, Bayley & Whare Date: AJLi-/ J ~ )<<Q /"7 -L-- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (71 7) 241-6070 Supreme Court ill # 81924 Attorney for Plaintiff (") ...... ~ = c: = ~~ c.n -Ocr' >- ~~ n"'n-, C 7'-r..' en z( ef) ,c' -. ~.: ." :);!-'" .,,~C; ::!:: C;?B ~C~ 3m Pc: r- Z ;g ~ 0 ~