HomeMy WebLinkAbout05-2838
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
FIVE STAR BRASS PRODUCTIONS, INC.,
Plaintiff,
CIVIL ACTION - LAW
No.2005-..-(P.3tf e~t...~
v.
HERSHEYF ARK ENTERTAINMENT &
RESORTS COMPANY, INC., d/b/a/
HERSHEYF 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, P A 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
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
FIVE STAR BRASS PRODUCTIONS, INC.,
Plaintiff,
CIVIL ACTION - LAW
No. 2005 - :< i33
v.
HERSHEYF ARK ENTERTAINMENT &
RESORTS COMPANY, INC., d/b/a/
HERSHEYFARK STADIUM,
Defendant.
COMPLAINT
AND NOW comes the Plaintiff, Five Star Brass Productions, Inc., by and
through its attorneys, ROMINGER, BAYLEY & WHARE, and fIles the following
Complaint, 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 21 79(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 fmal 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.
11. 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
first 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 of Mr. Hershman's understanding of the
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.
COUNT I: BREACH OF CONTRACT
29. Paragraphs I through 28 above are incorporated by reference as if fully set
forth herein.
30. The failure and refusal by Defendant Stadium to honor and comply with
its contract with Five Star constitute knowing, willful and bad faith breach of an oral
agreement between Stadium and Five Star to reserve and lease to Five Star Stadium's
premises on August 7, 2005.
31. The failure and refusal by Defendant Stadium to honor and comply with
its contract with Five Star constitute knowing, willful and bad faith breach of an implied
obligation not to deny the existence or honor the terms of the contract.
32. The failure and refusal by Defendant Stadium to honor and comply with
its contract with Five Star constitute knowing, willful and bad faith breach of an implied
obligation to deal with Five Star fairly and in good faith by not arbitrarily and
capriciously refusing to make available the Stadium premises on August 7, 2005.
33. As a direct and proximate result of the foregoing breaches of express and
implied contractual obligations by Defendant Stadium, the Plaintiff has been injured and
damaged due to its significant expenditure of resources to plan, market, and execute its
drum and bugle corps event, including but not limited to advertising, logistics, printing,
and postage.
34. As a direct and proximate result of the foregoing breaches of express and
implied contractual obligations by Defendant Stadium, the Plaintiff has and continues to
suffer damage to its reputation.
35. As a direct and proximate cause of said breaches, the Plaintiff sustained
other injuries as may be discovered.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court
enter judgment in favor to the Plaintiff for injuries, losses, and damages, in excess of
$50,000.00, sustained by the Plaintiff as a result of Stadiums's breaches described herein,
plus costs and reasonable attorney's fees, as well as such other relief as the Court deems
appropriate.
COUNT II: FRAUDULENT MISREPRESENTATION
36. Paragraphs I through 35 above are incorporated by reference as if fully set
forth herein.
37. The Defendant intentionally and/or negligently misrepresented a material
fact when its corporate officer, Richard Weimer, informed Plaintiff that the Stadium
premises were "booked" for Five Star's use on August 7, 2005.
38. The Defendants intentionally and/or negligently misrepresented a
material fact or intentionally concealed a material fact when they failed to inform the
Plaintiff that the Defendant had not committed to making its facility available for the
Plaintiff's use on August 7, 2005.
39. The Defendants' misrepresentation and nondisclosure were material to
the transaction at hand, and the Defendants made them falsely, with knowledge of their
falsity, or ought to have known of their falsity.
40. The Defendants had a duty to fully disclose to the Plaintiffs that the
Defendant had not, for its own purposes, fmalized the reservation of the premises for the
Plaintiff's use on August 7, 2005.
41. The Defendants' misrepresentation and nondisclosure were made with
the intent to mislead or induce the Plaintiffs into reliance upon them.
42. The Plaintiffs justifiably relied upon the Defendants' misrepresentation
and nondisclosure and, as a proximate cause thereof, incurred damages in excess of
$30,000.00.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court
enter judgment in favor to the Plaintiff for injuries, losses, and damages, in excess of
$50,000.00, sustained by the Plaintiff as a result of the Stadium's fraudulent
misrepresentation described herein, plus costs and reasonable attorney's fees, as well as
such other relief as the Court deems appropriate.
COUNT IV: DETRIMENTAL RELIANCE
43. Paragraphs I through 42 above are incorporated by reference as if fully set
forth herein.
44. Upon information and belief, the Defendant, through its duly authorized
officers, agents, and/or representatives deliberately made and/or permitted to be made
representations to Five Star in September 2004, and later reiterated at a meeting in the
Winter of 2004, which they knew or should have known were false and misleading.
45. Upon information and belief, it is alleged that the above-referenced
representations were false and misleading, and were intended to be such by Richard
Weimer, the Defendant's corporate officer, or by one or more of his superiors who
approved and authorized such representations with the expectation that they would be
communicated to the Plaintiff and would influence its conduct.
46. One or more of the Defendant's officers, agents, or representatives:
(a) knew or believed that the matters were represented to be;
(b) intended to disavow the promises and representations made;
(c) did not have the confidence in the accuracy of the representations that
were made, permitted and implied; and/or
(d) knew that there was no basis for the representations made.
47. Plaintiff Five Star was induced by and justifiably relied upon the
Defendant's misrepresentations.
48. Plaintiff Five Star's justifiable reliance upon the Defendant's
misrepresentations was a direct and proximate cause in determining the Plaintiff's
actions which resulted in his injuries, losses, and damages.
49. As a direct and proximate result of the Defendant's misrepresentations
and the Plaintiff's reliance upon them, the Plaintiff has been injured and damaged by the
expenditure and loss of fmancial and organizational resources, and has suffered great
harm to its reputation and good will in general and, in particular, within its industry.
50. As a direct and proximate result of the Defendant's misrepresentations
and the Plaintiff's reliance upon them, the Plaintiff has sustained other injuries as may be
discovered.
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court
enter judgment in favor to the Plaintiff for injuries, losses, and damages, in excess of
$50,000.00, plus costs and reasonable attorney's fees, as well as such other relief as the
Court deems appropriate.
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
7
~chaeIJ. Whare,Esquire
Attorney J.D. No. 89028
Karl E. Rominger, Esquire
Attorney J.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.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
FIVE STAR BRASS PRODUCTIONS, INC.,
Plaintiff,
CML ACTION - LAW
v.
No. 2005 -
HERSHEYFARK ENTERTAINMENT &
RESORTS COMPANY, me., d/b/a/
HERSHEYF ARK 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 Law 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
arl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
FIVE STAR BRASS PRODUCTIONS, me.,
Plaintiff,
CIVIL ACTION - EQUITY
No. 2005- .JJ>J9 ~~J._,~~
v.
HERSHEYFARK ENTERTAINMENT &
RESORTS COMPANY, me., d/b/a/
HERSHEYFARK STADIUM,
Defendant.
ORDER OF COURT
AND NOW, this /pr- day of ~ ,2005, in consideration of
the within Petition for Preliminary Injunction and the Plaintiff's Complaint, it is hereby
ordered that a hearing will be held on the /o1"ctay of -r- ,2005, at /, '0 ()
o'clock f m. in Courtroom # S- at the Cumberland County Courthouse in
Carlisle, Pennsylvania.
By the Court:
J.
Distribution:
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENl'l"SYLV ANIA
FIVE STAR BRASS PRODUCTIONS, INe.,
Plaintiff,
v.
HERSHEYFARK ENTERTAINMENT &
RESORTS COMPANY, INe., d/b/a/
HERSHEYFARKSTADIUM,
Defendant.
CIVIL ACTION - EQUITY
No. 2005 - 2838
PRAECIPE TO WITHDRAW
Please discontinue the above captioned matter without prejudice on behalf of
the Plaintiffs.
Datellujl(j I I} ~5
Respectfully submitted,
R.ominger, Bayley & Whare
-2
------
Karl E, Rominger, Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiff
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