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HomeMy WebLinkAbout06-0322 ~ Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF v, JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: O(p. 31:L G..;.';J '0.-..- CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue the attached writ of summons in the above captioned action and serve it on the listed defendants. Date: January 17, 2006 LAW OFF CES OF LESLIE DAVID JACOBSON Leslie D. Jacobson ID # 52673 Attorney for Plainti 8150 Derry Street Harrisburg, P A 17111.5260 717.909.5858 717.909.7788 [fax] r-.,:-;> , ... .':~- l C. (\0 ::'"} ~~ r c' c- ~ ~_l ~ - 0 '" -0 W t -.J -') .. '^- 'J, \(" ( oj' d . Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY flk/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 0 (., -32;( f2.;;.j '/~ v, JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS PRAECIPE FOR WRIT OF SUMMONS TO: JOSEPH HORNING 901 South College Street Myerstown, Pennsylvania 17067 THOMAS HOUSER 294 Royal Road Palmyra, Pennsylvania 17078-9765 YOU ARE HEREBY NOTIFIED THAT THE HERSHEY COMPANY F/K/A HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. HAS COMMENCED AN ACTION AGAINST YOU. Date:~ /7, ~I" rWili4h~J By: Deputy ., SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-00322 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERSHEY COMPANY THE VS HORNING JOSEPH D/B/A HORNINGS R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HORNING JOSEPH D/B/A HORNINGS ROADSIDE MARKET but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 30th , 2006 , this office was in receipt of the attached return from LEBANON -'- // s~,w,,:-rs...' // <,>,_..:-.;~:,/. // . . /.~;;:::_/ . - /~/~-------c.-.-. R. Thomas Kline Sheriff of Cumberland County Sheriff's Costs: Docketing Out of County Surcharge Dep Lebanon County Postage 18.00 9.00 10.00 81.90 .78 119.68 01/30/2006 LESLIE JACOBSON Sworn and subscribed to before me this 1"Ji< day of ],1--, <"J "~~ (!,~ (' l Prot eJt y " SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-00322 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERSHEY COMPANY THE VS HORNING JOSEPH D/B/A HORNINGS R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HOUSER THOMAS but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 30th , 2006 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 01/30/2006 LESLIE JACKSON So answ~//://-----: ~. h~~~~;~- ~- __~ ______-c>- R. Thomas Kline Sheriff of Cumber and County Sworn and subscribed to before me this }"& day of 1.L'~'7 ;Z01ll, A~D' (!()h . ' ~ / Pro no rrry " In The Court of Common Pleas of Cumberland County, Pennsylvania The Hershey canpany VS. Joseph Horning d/b/a Horning's Roadside Market same No. 06-322 civil SERVE : Now, January 19. 2006 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . r~~A<~ Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 , at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ $ - h. . ' In The Court of Common Pleas of Cumberland County, Pennsylvania The Hershey Canpany VS. Joseph Horning d/b/a Horning's Roadside Market SERVE: Thomas Houser No. 06-322 civil Now, January 19. 2006 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. , ~~.~~~.R Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 , at o'clock M. served the within upon at by handing to copy of the original a and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this_day of ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ $ - WRIT OF SUMMONS NO. 06-322 THE HERSHEY COMPANY f/k/a HERSHEY FOOD CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. vs. JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER STATE OF PENNSYLVANIA } COUNTY OF LEBANON } SS: THE LAW OFFICES OF LESLIE D. JACOBSON LESLIE D. JACOBSON, ESQUIRE 8150 DERRY STREET, STE. A HARRISBURG, PA 17111-5260 (717) 909-5858 (Return to Cumberland County) Docket Page 23141 David A. Heath, Deputy Sheriff, being duly sworn according to law, deposes and says that he served the within WRIT OF SUMMONS upon JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET, the within named DEFENDANT, by handing a true and attested copy thereof, personally to him on January 23, 2006 at 10:15 A.M., at 901 South College Street, Myerstown (Jackson Township), Lebanon County, Pennsylvania, and by making known to him the contents of the same. William F. Mohl, Deputy Sheriff, being duly sworn according to law, deposes and says that he served the within WRIT OF SUMMONS upon THOMAS HOUSER, the within named DEFENDANT, by handing a true and attested copy thereof, personally to him on January 23, 2006 at 3:30 P.M., at 294 Royal Road, Palmyra (South Londonderry Township), Lebanon County, Pennsylvania, and by making known to him the contents of the same. Sworn to and subscribed before me this 26th day of January, 2006 Notary Public NOl ARfAL SEAL KlM8ERL y A. 8ROWER Notary P'Jblic City tf Le)ancil. Lebaltn Ctliilty. Pa. My C,mmIS511[1 lx HS December 17. 2006 so ANSWERS, Wu'adM~ DEPUTY SHERIFF kb f)- ~ a..- flI ~ DEPUTY SHERIFF kb 11'~' fd.l2-~_ SHERIFF kb SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced Costs paid on 01/20/2006 Check No. 52679 Amount Costs Incurred: Amount Refund: Check No. 18231 Amount $150.00 $ 81.90 $ 68.10 All Sheriffs Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 . Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY ti'kla HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LAW A VISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos viente (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que se usted falla de tomar accion como se describe anteriormente, el case puede proceder sin usted y un fallo por cuaiquier suma de dinero rec1amada en la demanda 0 cualquier otra rec1amacion 0 remedio solicitado por el demandante pUede ser dicado en contra suya por la Corte sin mas aviso adicional. Usted pUede perder dinero 0 propiedad u otros derechos importantes para usted' USTGED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TlENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 FACTS 4. On or about January 17, 2004, Plaintiff entrusted a trailer load of Hershey's Chocolate Kisses to Napa Transportation, Inc. ("Napa"), a trucking company, picked up from Hershey Foods, Inc. in the ordinary course of business, to be delivered to Hershey's customer CVS at 150 Industrial Highway, North Smithfield, RI 02896. A copy true and correct copy of Hershey's invoice to CVS is attached as exhibit "A". 5. Said load consisted of two thousand five hundred fifty (2,550) cases of chocolate kisses, packaged in ten (10) ounce packages. 6. The trailer load of chocolates was worth one hundred twelve thousand six hundred eight dollars ($112,608.00). See exhibit "A". 7. Napa was to deliver said trailer load to CVS Phannacies for resale to the public. 8. On January 17,2004, Defendant Houser, an owner operator who regularly contracted with Napa to deliver goods for them, without any authority or pennission, entered Napa's storage premises located at 4800 Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055, and stole the aforementioned trailer load of chocolates. 9. Defendant Houser sold said stolen load of chocolates to Defendant Horning for Thirty Thousand Dollars ($30,000.00). 10. The transaction took place at Defendant Horning's place of business located at 901 S. College Avenue, Myerstown, Pennsylvania, on January 17, 2004 at 9:30 p.m. 11. When said load could not be delivered to CVS Phannacies as contracted, Hershey lost the wholesale value of the load which at the time and place of conversion, was one hundred twelve thousand six hundred eight dollars ($112,608.00) (see Exhibit "A"). 12. On or about October 12, 2004, Defendant Houser pled guilty to the theft of said trailer and chocolates in the Court of Common Pleas of Cumberland County, Pennsylvania Docket No. CP-21-CR-423-2004, and was sentenced by the Honorable Judge Hoffer. A copy of Judge Hoffer's sentencing order is attached hereto as exhibit "B" and incorporated by reference. 13. Defendant Houser was ordered to pay restitution in the amount of$112.608.00, of which $9,830.00 has been paid by Defendant Houser. See exhibit "B". COUNT 1 - CONVERSION 14. Paragraphs 1 through 13 are hereby incorporated by reference. 15. After purchasing the stolen chocolates from Defendant Houser, Defendant Horning sold said stolen load of chocolates at his businesses. 16. Defendant Homing sold the ten (10) ounce bags for Ninety-Nine Cents ($.99) at his place of business. 17. The Defendants' possession and sale of said stolen load of chocolates deprived Plaintiff of its right to its property without Plaintiffs consent and without lawful justification. 18. Defendant's conduct, i.e. the purchase and sale of said stolen load of chocolates, was outrageous, and showed reckless indifference to the rights of Plaintiff. 19. After demand for reimbursement by Plaintiff, Defendant has refused. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants for one hundred two thousand seven hundred seventy eight dollars ($102,778.00), and forreasonable attorneys' fees, and for punitive damages, and for any other relief deemed just and appropriate. Dated: July 26, 2006 Leslie D. Jacobso , 8150 Derry Street Harrisburg, PAl 717.909.5858 FAX: 717.909.7788 Attorney for Plaintiff Exhibit A , \. ORIGINAL INVOICE PAGE: 1 BILL TO: 4002914 evs VENDOR #S6BO PO BOX 3120 WOONSOCKET RI 02B95 CIairm for !oS$/damag811tshor1aQeS must be promp~Y filed and forwarded 10: HERSH~ FOODS CORPORATlON ATTN: CREDIT DEPARTMENT HERSHEY, PA 17033 Refer to this numbor on al\ Correspondence INVOICE # 92395836 [INVOICE 01/1612004 DA TE ~MlDONYYY H Her5hey Foods Corporation 100 Crystal A Drive Hershey, PA 17033 1.023667 SHip TO: evs 150 INDUSTRIAL HIGHWAY NORTH SMITHFIELD RI 02896 pLEASE SEliC CHECKS TO: Hershey Foods USA P,O, Box 640146 PlIlsburgh, PA 15264-0146 , 'J'l\ilI~U far YDur order Ra psTt WHSE PRICE Carrie, Ord.rDiIto PO Numb.1' Shil>Palll Req a.IOllO eOL NQ Qu Nil PI.utI eal! 1-800-233-2143 840101 1918 4 NPAT 10!30/21lO3 1452216 01/1612004 01106/2D04 2488700 ClIJANllT'I U C......... UPC Pl"Omo Promo _nded 0 stock 110m I.... DatCl'CpII.. Cod.. UnltPrlcI AllowiInc:lt JJ.tUDllPtlc:o Net Amount Ordered !hlppod M lI_r CocIo f1l.....""""lBilC: S<lDOO 2550 25.50 CA 177837 13902 E 1</.. 10cz 24 0 46.3200 2,1600 44,1600 112608,00 , TOTALS ShIpQ!\, G,lQUj Wt "otWl Poll... Order No PIV G_. Pro... ~"dltd N6t To~l 2550 4111a.75~.aa 34.00 11147!l4 00 118116.00 5.0 11 8.00 ..****....**..****~.*.***PROM0T10NS*f*........*.*.*..**...... lod. I:)leG!'Iptlon No Amount adt ' a_pilon No Amount . 2004 CPA AccIUilI CVS BLUE CM "048:! 2.16 TeAMS NET INVOICE. 2'lfo/40 n01 41 112.608,00 , EXHIBIT If pilid by: pay the last amount If I 02/25/2004 the dlscol..lnt 13 not 3 earned. MM/CD(YYYY Discount of: $; 2.362,32 v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-2l-CR-423-2004 CHARGE: THEFT BY UNLAWFUL TAKING OR DISPOSITION AFFIANT: PTL. GLENN ADAMS COMMONWEALTH THOMAS W. HOUSER OTN: L184607-3 IN RE: SENTENCE ORDER OF COURT AND NOW, September 28, 2004, Thomas W. Houser, having appeared in open court together with. the Public Defender, Linda Hollinger, Esquire, and the Court having received a presentence investigation report, sentence of the court is that the defendant pay the costs of prosecution, that he make restitution to the victim at a hearing to be held by the court, the time and place of which to be agreed upon by counsel and the victim, and the court thereafter being notified, and that he be placed in the Intermediate Punishment Program for a period of seven years conditioned upon program compliance. The first nine months to be served in restrictive intermediate punishment to include confinement in the Cumberland County Prison, and the court will allow the defendant to be placed on the Work Release Program. A TRUE COpy FROM RECORD d I h unto set my han In Testimony Whetreotd, o~~tat Carlisle, PA. and the ealo sal '/ . /16 ,2.0~ By the Court, Daniel J. Sodus, Esquire Senior Assistant District Attorney Linda Hollinger, Esquire Assistant Public Defender '),,~ C"'\"~"'l'''''-':'~:lJ h 0 : II V h - UO liUOl Probation Office CCP ru ':l --rn 1 Sheriiid.:J I ~ :2 Victim Services tiE;, .l6::~Q~~ :mtf is\~ COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-423-2004 CHARGES: (1) Theft by Unlawful Taking V. THOMAS HOUSER OTN: L184607-3 Det. Glenn Adams 2 ~ ..":::> .,,::::: AFFIANT: ORDER C:-J ,nil C-) 1,..0 o RE: Restitution 'D AND NOW, this ']0 'dayof 1>'~1 ~ , 2004, pursuantto a '"J ell stipulation by the Commonwealth of Pennsylvania, by and through Daniel J. Sodus, Esq., Assistant District Attorney, and the Defendant, Thomas Houser, by and through counsel, Linda S. Hollinger, Esq., it is so ORDERED that restitution be set in the above-captioned matter at $112,608.00. Pursuant to further stipulation by the parties, the Hampden Township Police Department is hereby ORDERED AND DIRECTED to turn over to NAP A Transportation the sum of $9,830.00, said sum having been confiscated from the Defendant, Thomas Houser. Pursuant to further stipulation by the parties, the Clerk of Courts is ORDERED AND DIRECTED to credit the Defendant, Thomas Houser, for the $9,830.00, against the amount of restitution due and owing in the above-captioned matter. BY THE COURT: A TRUE COPY FROM RECORO In Testimony whereof, I here unfo set my hand and themi of said Court at Carlisle, PA. Thi day of . .20@ . /1;L p '- f~<Tr:i1 U;) ~:"=."I ~~"i'C'J:t i U'-'J"'] .;,,"~ !:"",p~ .j) \ ."';' STlPULAtrON The Co onwealth of Pe ylvania and the Defendant hereby stipulate to the entry of above- rder in the ab 6-captioned matter. dele p ~([,~ Lmda S. Hollinger, Esq. . For the Defendant ~ Damel J. Sodus, sq. For the Commonwealth Distribution: District Attorney's Office Public Defender's Office Clerk of Courts Hampden Township Police Department, 230 S. Sporting Hill Rd., Mechanicsburg, P A 17050 (""> (::: ....., =.:::;) = ""'" \::;:1 :~n t'.....~: :.. ,;' -)) .::J u w .c JAN - 4 2004 Copies delivered on =~ ~ IS ~rti-~ fI'"I~ u ',J1 'r---J' :,,,,,,.1' VERIFICATION I, Ron Accomando, President of Napa Transportation, Inc., Agent for The Hershey Company f/kJa Hershey Foods Corporation, being duly authorized to make this verification, do hereby verify that the facts stated in the foregoing 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. Date: Ju'( t'f I 1.010 . . THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION,INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned Paralegal employed by the Law Offices of Leslie D. Jacobson, hereby certifies that a true and correct copy of the Complaint has been duly served this day, by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Horning Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Dated: July 26, 2006 Ch Julius 8150 Derry S eet Harrisburg, PAl 7111 717.909.5858 FAX: 717.909.7788 .. r - .-\ ~"F\;1 (.,"7 n ., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE HERSHEY COMPANY f1k1a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. . . vs. NO. 06-322 CIVIL TERM . . .JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY; Please enter the appearance of Christianson Meyer, of 411 Chestnut Street, Lebanon, Pennsylvania, as attomey for .Joseph Homing, one of the Defendants In the above captioned action. ~ George E. Christianson ID 06310 Chi1st1anson Meyer 411 Chestnut Street Lebanon, PA 17042 717 273 1651 Attomeys for Defendant .Joseph Homing DATED: August 30, 2006 () c, <~. -r;t:f- rnf; ~~:: (}) .' -<. . ~C_ .~:::: (" 'PC: 2; :2 ,..., = = ""~ {/} rq -0 I Cl' o .., :I!." rn- - M ..80 ~}~~, -')..-- ':'~C) Bell :;;! 5:J .-< :P' :x - .. r ...0 , . IN THE COURT OF COMMON PLI!AS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE HERSHEY COMPANY tlkla HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. vs. . . NO. 06-322 CIVIL TERM .JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET and THOMAS : HOUSER PRELIMINARY OB.JECTIONS OF DEFENDANT. .JOSEPH HORNING Defendant .Joseph Homing, d/b/a Homing's Roadside Market, by and through his undersigned counsel, Christianson Meyer, files preliminarily objections to Plaintiff's Complaint, based upon the followlngl I. PRELIMINARY OB.JECTION PURSUANT TO PA RULE OF CIVIL PROCEDURE 1028(a)(1) IMPROPER SERVICE 1. A complaint was filed on or about .July 26, 2006, a copy of which is attached hereto, marked Exhibit A and made a part hereof. 2. Attached to the complaint Is a certificate of service Indicating service of the same by mall upon Defendant Homing's attorney. f . 3. The service of a complaint, pursuant to Pa. Rules of Civil Procedure 400 Is to be made within the Commonwealth only by the Sheriff. 4. In this matter, the complaint was not served by the Sheriff. 5. Pa. Rules of Civil Procedure 402(a) indicates that the original process may be served by providing it to the Defendant. 6. In this matter, no service upon the Defendant was ever made. WHEREFORE, Defendant, Joseph Homing, requests that Plaintiff's complaint be dlsmls..d for Improper service. II. PRELIMINARY OBJECTION PURSUANT TO PA. RULE OF CIVIL PROCEDURE 1028(alf4l LEGAL INSUFFICIENCY OF THE PLEADING 7. Paragraphs 1 through 6 are Incorporated herein by reference as though set forth at length. 8. Plaintlfl's complaint sets forth In Paragraph 1 that Plaintiff is The Hershey Company. g. No further allegations with regard to the Plaintiff are set forth In the complaint. 10. The affidavit Is signed by the president of Napa Transportation, Inc., agent for The Hershey Company. 11. There is nothing contained within the complaint regarding the alleged agency. , . WHERI!FORE, Defendant, .Joseph Homing, requests that Plaintiff's complaint be dismissed for legallnsutftclency of the pleading. III. PRELIMINARY O..JECTION PURSUANT TO PA. RULE OF CIVIL PROCEDURE 1028(a\(6\ PENDENCY OF PRIOR ACTION 12. Paragraphs 1 through 11 are Incorporated herein by reference as though set forth at length. 13. An action was previously filed In the Court of Common Pleas of Lebanon County to Action No. 2004-01648 against Defendant Homing by the aneged agent, Napa Transportation, Inc. 14. The Court of Common Pleas of Lebanon County granted Defendant Homing's motion for non-sult In that matter. 15. Napa Transportation, Inc. has appealed that decision to the Superior Court of Pennsylvania. 16. Addltionany, a writ of summons was filed in the Court of Common Pleas of Lebanon County to Action No. 2006-00115 on .January 17, 2006 by Plaintiff and against Defendant Homing, a copy of which Is attached hereto, marked Exhibit. and made a part hereof. . WHI!RI!FORI!, Defendant, Joseph Homing, requests that Plaintiff's complaint be dismissed due to the pendency of a prior action. ~.. /'//// / , George I!. Christianson, ID# 06310 Christianson Meyer 411 Chestnut Street Lebanon,Pa.17042 (717) 273 1651 Attorney for Defendant Homing ., . . ~ . " Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY tIkIa HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CNIL ACTION - LAW DEFENDANTS 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING ALA WYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 ;t . " Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY fi'k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CNIL ACTION - LAW A VISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos viente (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que se usted falla de tomar accion como se describe anteriormente, el case puede proceder sin usted y un fallo por cua1quier suma de dinero reclamada en la demanda 0 cualquier otra reclamacion 0 remedio solicitado por el demandante puede ser dicado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTGED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle,PA 17013 , " Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY fi'kJa HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS COMPLAINT AND NOW COMES, the Plaintiff The Hershey Company fi'kJa Hershey Foods Corporation, by and through their attorneys the Law Offices of Leslie David Jacobson, and files the following Complaint and in support thereof states as follows: PARTIES 1. The Plaintiff is The Hershey Company fi'kJa Hershey Foods Corporation ("Hershey") is a corporation duly organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 100 Crystal Drive, Hershey, Pennsylvania, 17033. 2. Defendant Joseph Horning is an adult individual residing in Myerstown, Lebanon County, Pennsylvania. Defendant owns and operates Horning's Roadside Markets at 901 College Street, Myerstown, pennsylvania and 8316 Lancaster Avenue, Bethel, Pennsylvania. 3. Defendant Thomas Houser is an adult individual residing at 294 Royal Road, Palmyra, Pennsylvania 17078-9765. ,. FACTS 4. On or about January 17, 2004, Plaintiff entrusted a trailer load of Hershey's Chocolate Kisses to Napa Transportation, Inc. ("Napa"), a trucking company, picked up from Hershey Foods, Inc. in the ordinary course of business, to be delivered to Hershey's customer CVS at 150 Industrial Highway, North Smithfield, RI 02896. A copy true and correct copy of Hershey's invoice to CVS is attached as exhibit "A". 5. Said load consisted of two thousand five hundred fifty (2,550) cases of chocolate kisses, packaged in ten (10) ounce packages. 6. The trailer load of chocolates was worth one hundred twelve thousand six hundred eight dollars ($112,608.00). See exhibit "A". 7. Napa was to deliver said trailer load to CVS Phannacies for resale to the public. 8. On January 17,2004, Defendant Houser, an owner operator who regularly contracted with Napa to deliver goods for them, without any authority or pennission, entered Napa's storage premises located at 4800 Toodle Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055, and stole the aforementioned trailer load of chocolates. 9. Defendant Houser sold said stolen load of chocolates to Defendant Homing for Thirty Thousand Dollars ($30,000.00). 10. The transaction took place at Defendant Homing's place of business located at 901 S. College Avenue, Myerstown, Pennsylvania, on January 17, 2004 at 9:30 p.m. 11. When said load could not be delivered to CVS Phannacies as contracted, Hershey lost the wholesale value of the load which at the time and place of conversion, was one hundred twelve thousand six hundred eight dollars ($112,608.00) (see Exhibit "A"). 12. On or about October 12, 2004, Defendant Houser pled guilty to the theft of said trailer and chocolates in the Court of Cornmon Pleas of Cumberland County, Pennsylvania Docket No. CP-21-CR-423-2004, and was sentenced by the Honorable Judge Hoffer. A copy of .' Judge Hoffer's sentencing order is attached hereto as exhibit "B" and incorporated by reference. 13. Defendant Houser was ordered to pay restitution in the amount of$112.608.00, of which $9,830.00 has been paid by Defendant Houser. See exhibit "B". COUNT 1 - CONVERSION 14. Paragraphs 1 through 13 are hereby incorporated by reference. 1 5, After purchasing the stolen chocolates from Defendant Houser, Defendant Homing sold said stolen load of chocolates at his businesses. 16. Defendant Homing sold the ten (10) ounce bags for Ninety-Nine Cents ($.99) at his place of business. 17. The Defendants' possession and sale of said stolen load of chocolates deprived Plaintiff of its right to its property without Plaintiffs consent and without lawful justification. 18. Defendant's conduct, Le. the purchase and sale of said stolen load of chocolates, was outrageous, and showed reckless indifference to the rights of Plaintiff. 19. After demand for reimbursement by Plaintiff, Defendant has refused. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants for one hundred two thousand seven hundred seventy eight dollars ($102,778.00), and for reasonable attorneys' fees, and for punitive damages, and for any other relief deemed just and appropriate. Dated: July 26, 2006 Leslie D. Jacobso , 8150 Derry Street Harrisburg, PAl 717.909.5858 FAX: 717.909.7788 Attorney for Plaintiff . " Exhibit A . \ ,- " ORIGINAL INVOICE PAGE: 1 BILL TO; 4002914 CVS VENDOR #3a80 PO BOX 3120 WOONSOCKET RI 02895 Cl2ims let loss/darnageslshortages IWSI be prornpdy filed and forwarded to: HERSHE;Y FOODS CORPORATION ATTN: CREDIT DEPARTMENT HERSHEY, PA 17033 Refer 10 this numbsr on all Correspondence INVOICE # 92395836 I INVOICE 01/16/2004 DATE "MlDDIYYYY H Hershey Foods Corporation 100 Crystal A Drive Hershey, PA 17033 1023667 SHIP TO: CVS 150 INDUSTRIAL I-IIGHWAY NORTH SMITHFIELD RI 02896 PLEASE SEND CHECI<S TO: Hershey Foods USA P ,0. Box 640146 PJllsburgh, PA 15264-0146 , PO Number BOL No l't\llInk yQU far your order Rg p. Tt WHSE PRICE Carriar Order Dido "11> PalA Req DsI Date Questlon.1 PtDaso eall 1..aOO"233-21~ 840101 1818 4 NPAT 1 0130I2003 1452216 i 0111612004 0110612004 2463700 QUAN1lTY u C_ UPC lIMn ~.Mptlon Pl'Oma P"amo Extended 0 5IDok 110m Co<Ioo U"UPrlca .AJknnn~ Nat Unit Ptl~ Not Amount erdarod !hl'PPad M Wumbot COda M~_rlJ): il4ODO 2550 2550 CA 177637 .13902 E KIn 10c:z 24- . 46.3Z00 2.1800 44,1600 112608.00 . i TOTALS . Ship Ot~ Gmg. Wt N.twt Palhrla Ord6fNa 'PIV GIll>5 Pro"", axt:Bnded Not TQ~ 2550 41118.75 38.250.00 34,00 1114794 , 00 116116.00 5506.on 112508.00 ........... **.....* * 011-.-. ...***.*.. *... *.. ..PROMOTIONS............. +.....**. ........,. **_............ Ood. o.arlptlQ~ No Amount: Cad. i DOO<r\piJan No Amount . 2004 CPA Aol:nsoI CVS BLUE CH 410483 2.18 reRMS NET INVOICE $ 2%/40 not 41 112.608,00 ! EXHIBIT if paid by: Pay the la~ amount If J , the dlsco~nt Is not 3 02/25/20D'I- earned. MM!PD/yyyY " Di3count of: $ . 2.362,32 . " v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-2l-CR-423-2004 CHARGE: THEFT BY UNLAWFUL TAKING OR DISPOSITION ~AFFIANT: PTL. GLENN ADAMS COMMONWEALTH THOMAS W. HOUSER OTN: L184607-3 IN RE: SENTENCE ORDER OF COURT AND NOW, September 28, 2004, Thomas W. Houser, having appeared in open court together with the Public Defender, Linda Hollinger, Esquire, and the Court having received a presentence investigation report, sentence of the court is that the defendant pay the costs of prosecution, that he make restitution to the victim at a hearing to be held by the court, the time and place of which to be agreed upon by counsel and the victim, and the court thereafter being notified, and that he be placed in the Intermediate Punishment Program for a period of seven years conditioned upon program compliance. The first nine months to be served in restrictive intermediate punishment to include confinement in the Cumberland County Prison, and the court will allow.the defendant to be placed on the Work Release Program. A TRUE COpy FROM RECORD f I here unto set my hand ln Testimony Wlhefre~d ourt at Carlisle, PA. and the ea 0 sa., Il~ n .20li:! By the Court, Daniel J. Sodus, Esquire Senior Assistant District Attorney Linda Hollinger, Esquire Assistant Public Defender \hi "/..L" :-1 ""..:~; C:""" -, r.~" ., :-~ n J ) 11 0 : II V h - 130 liGm Probation Office CCP lil "'9 ""'iP ~ SheriAti:J 11:] Victim Services d~.~hl"l"'i<~ -";. . L' f" ,/~<' oM. "'-"'''~' '1..",. U -.'.- '""","C'~". '-'''-;:-'"'''" :rotf ;1\ ( \l\~ ~ .- , , COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-423-2004 V. CHARGES: (1) Theft by Unlawful Taking THOMAS HOUSER OTN: L184607-3 AFFIANT: Det. Glenn Adams ?- ~ ,= :1? ORDER C"J r"ll >:-:J I,~'J ,::) c, RE: Restitution -0 , 2004, pursuantto a '0'" AND NOW, this '30 -day of 1J~ . U1 stipulation by the Co=onwealth of Pennsylvania, by and through Daniel 1. Sodus, Esq., Assistant District Attorney, and the Defendant, Thomas Houser, by and through counsel, Linda S. Hollinger, Esq., it is so ORDERED that restitution be set in the above-captioned matter at $112,608.00. Pursuant to further stipulation by the parties, the Hampden Township Police Department is hereby ORDERED AND DIRECTED to turn over to NAP A Transportation the sum of$9,830.00, said sum having been confiscated from the Defendant, Thomas Houser. Pursuant to further stipulation by the parties, the Clerk of Courts is ORDERED AND DIRECTED to credit the Defendant, Thomas Houser, for the $9,830.00, against the amount of restitution due and owing in the above-captioned matter. BY THE COURT: A TRUE COPY FROM RECORD In Testimony whereo\, I here unto set my hand and theml of said Court at Carlisle, PA. Thi day of . . 20@ . /1;1. p '- ~, ,~.,,~ .~~. 'il ~,,=... ~.:-<tJ::> i r......,., , . U r:TI'.::.-::l \=-,:lY i.1\ \ . . STIPULATION The Co onwealth ofPe ylvania and the Defendant hereby stipulate to the entry of above- rder in the ab icaptioned matter. I . dA1-de 2. JLI(;~ Darnel J. Sodus, sq. Lmda S. Hollinger, Esq. For the Commonwealth For the Defendant Distribution: District Attorney's Office Public Defender's Office Clerk of Courts Hampden Township Police Department, 230 S. Sporting Hill Rd., Mechanicsburg, P A 17050 (") c: ~ ~ = , .= '''1jij (::='I a i'. ;-n .,.- ,,-, ~'l>:'liISI 'JJ U c... .::;J '1"81 u '0 y,J - J::: JAN - 4 2004 Copies delivered 00 . " VERIFICATION I, Ron Accomando, President of Napa Transportation, Inc., Agent for The Hershey Company flkJa Hershey Foods Corporation, being duly authorized to make this verification, do hereby verify that the facts stated in the foregoing document are true and correct to the best of my knowledge, infonnation and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. Date: .J., 1 t'f I 10.1. "'. . .,- . THE HERSHEY COMPANY fIkIa HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CNIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned Paralegal employed by the Law Offices of Leslie D. Jacobson, hereby certifies that a true and correct copy of the Complaint has been duly served this day, by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Homing Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Dated: July 26, 2006 ...r . ... Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/kIa HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET DEFENDANT IN THE COURT OF COMMON PLEAS LEBANON COUNTY, PENNSYL VANIA CASE NO.: ~DD~- 0011,1; CIVIL ACTION - LAW , ,q cs WRIT OF SUMMONS ~: .' TO: JOSEPH HORNING 901 South College Street Myerstown, Pennsylvania 17067 ':_-' -n ._ r"', YOU ARE HEREBY NOTIFIED THAT THE HERSHEY COMPANY F/K/A HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. HAS COMMENCED AN ACTION AGAINST YOU. Date: QI-I1- Q ~ Xlk Il!. (j;,;;Iit~ Prothonorery , By: pLl 1. ~twJ Depu L; .. . , . Leslie D. Jacobson _ The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k!a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CASE NO.: 0(,. 3;).:L Cw.u. IJ- CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: 0 ....., 0 = c = " cr- " s:! "'"t.1 i', '- n'~ (, )>. n,:D ;:":. Z , 2~ r 1Jm ~';.J -.l :cut: () .:> ~~ :::::::1.,..\ """ -;;S:!J -~ -- -'.... ~~,O ~... - ESrn .- s;! :2 U"I :n CD .< Please issue the attached writ of summons in the above captioned action and serve it on the listed defendants. Date: January 17, 2006 LAW OFF CES OF LESLIE DAVID JACOBSON Leslie D. Jacobson ID # 52673 Attorney for Plainti 8150 Derry Street Harrisburg, PAl 7111. 5 260 717.909.5858 717.909.7788 [fax] ." .. ~ Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY fi'kla IN THE COURT OF COMMON PLEAS HERSHEY FOODS CORPORATION BY CUMBERLAND COUNTY, PENNSYLVANIA THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF CASE NO.: 0(,.33.;z.. (1, :K'l /....- v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS PRAECIPE FOR WRIT OF SUMMONS TO: JOSEPH HORNING 901 South College Street Myerstown, Pennsylvania 17067 THOMAS HOUSER 294 Royal Road Palmyra, Pennsylvania 17078-9765 YOU ARE HEREBY NOTIFIED THAT THE HERSHEY COMPANY F/K/A HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC, HAS COMMENCED AN ACTION AGAINST YOU. Date: (J~ /7, ~(.. Prothonotary By: Deputy .. .f' ... AFFIDAVIT SUbject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities, I, George E. Christianson, Esquire, declar. that I am the attorn.y for the D.fendant, .Ios.ph Homing; that I am authorlz.d to make this v.rlflcatlon on his behalf; that the facts s.t forth In the for.golng Preliminary Obj.ctions are bas.d upon Information suppll.d to m. by my cll.nt and upon my own knowl.dge which I b.lI.ve to b. true and correct, and time Is of the ....nc.. Date:~~\Oy Georg. E. Chrl son, 1D#0631 0 Christianson M.y.r 411 Ch.stnut Stre.t L.banon,Pa.17042 7172731651 Attorn.y for D.fendant .Ios.ph Homing .. (, .. CERTIFICATE OF SERVICE I, SUE! A. RODKEY, an employee of CHRISTIANSON MEYER, 411 Chestnut Street, Lebanon, Pennsylvania, 17042, do hereby certify that I served by U.S. First :3/ Class Mall, postage paid, on August., 2006, a copy of the within Preliminary ObJections, addressed to the following: Leslie David "acobson, Esquire 8150 Derry Street; Suite A Harrisburg, Pa. 17111.5260 Attorney for Plaintiff k a.<# Sue A. Rodkey c C) -- ~ ,C~ .( :Z. =<! 1"-..) '.:;:;' r:.:::;l ~. n ""n ::;:J .'-1'1 P1E -~lj ,I :;) C-:J (-~~; (~) ;--"j::_::l ,;.) "':~ ! 'Tl (~.J ::;;! :.u .< (/) , -'0 I en -...." 5~ en o ! i ~ if r Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LA W A VISO USTED HA SIDO DEMANDADOA EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos viente (20) dias despues de la notificacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que se usted falIa de tomar accion como se describe anteriormente, el case puede proceder sin usted y un falIo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamacion 0 remedio solicitado por el demandante puede ser dicado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTGED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIA T AMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE P AGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 4. Hershey has authorized Napa Transportation, Inc. to act as its agent in all matters pertaining to this lawsuit. FACTS 5. On or about January 17, 2004, Hershey entrusted a trailer load of Hershey's Chocolate Kisses to Napa Transportation, Inc. ("Napa"), a trucking company, picked up from Hershey Foods, Inc. in the ordinary course of business, to be delivered to Hershey's customer CVS at 150 Industrial Highway, North Smithfield, RI 02896. A copy true and correct copy of Hershey's invoice to CVS is attached as exhibit "A". 6. Said load consisted of two thousand five hundred fifty (2,550) cases of chocolate kisses, packaged in ten (10) ounce packages. 7. The trailer load of chocolates was worth one hundred twelve thousand six hundred eight dollars ($112,608.00). See exhibit "A". 8. Napa was to deliver said trailer load to CVS Pharmacies for resale to the public. 9. On January 17,2004, Defendant Houser, an owner operator who regularly contracted with Napa to deliver goods for them, without any authority or permission, entered Napa's storage premises located at 4800 Trind1e Road, Mechanicsburg, Cumberland County, Pennsylvania, 17055, and stole the aforementioned trailer load of chocolates. 10. Defendant Houser sold said stolen load of chocolates to Defendant Homing for Thirty Thousand Dollars ($30,000.00). 11. The transaction took place at Defendant Homing's place of business located at 901 S. College Avenue, Myerstown, Pennsylvania, on January 17, 2004 at 9:30 p.m. 12. When said load could not be delivered to CVS Pharmacies as contracted, Hershey lost the wholesale value of the load which at the time and place of conversion, was one hundred twelve thousand six hundred eight dollars ($112,608.00) (see Exhibit "A"). 13. On or about October 12, 2004, Defendant Houser pled guilty to the theft of said 2 trailer and chocolates in the Court of Common Pleas of Cumberland County, Pennsylvania Docket No. CP-21-CR-423-2004, and was sentenced by the Honorable Judge Hoffer. A copy of Judge Hoffer's sentencing order is attached hereto as exhibit "B" and incorporated by reference. 14. Defendant Houser was ordered to pay restitution in the amount of$112.608.00, of which $9,830.00 has been paid by Defendant Houser. See exhibit "B". 15. Napa as a plaintiff representing its own interests, filed an action in the Court of Common Pleas of Lebanon County docketed at case number 2004-01648 against Defendant Horning. 16. As a matter oflaw, a double recovery is not permitted. 17. A judgment obtained in either case will require the termination of the other. COUNT 1 - CONVERSION 18. Paragraphs 1 through 17 are hereby incorporated by reference. 19. After purchasing the stolen chocolates from Defendant Houser, Defendant Horning sold said stolen load of chocolates at his businesses. 20. Defendant Horning sold the ten (10) ounce bags for Ninety-Nine Cents ($.99) at his place of business. 21. The Defendants' possession and sale of said stolen load of chocolates deprived Plaintiff of its right to its property without Plaintiff s consent and without lawful justification. 22. Defendant's conduct, i.e. the purchase and sale of said stolen load of chocolates, was outrageous, and showed reckless indifference to the rights of Plaintiff. 23. After demand for reimbursement by Plaintiff, Defendant has refused. 3 WHEREFORE, Plaintiff, The Hershey Company f/k/a Hershey Foods Corporation, prays this Honorable Court to enter judgment in its favor and against Defendants for one hundred two thousand seven hundred seventy eight dollars ($102,778.00), and for reasonable attorneys' fees, and for punitive damages, and for any other relief deemed just and appropriate. Dated: September 15, 2006 ctfully Submitted, S OF LESLIE DA \r.ID JACO e ie D. Jacobson, 8150 Derry Street Harrisburg, PAl 71 717.909.5858 FAX: 717.909.7788 Attorney for Plaintiff 4 Exhibit A " ' " ORIGINAL INVOICE PAGE: 1 SILL TO: 4002914 CVS VENDOR #3880 PO BOX 3120 WOONSOCKET RI 02895 Claims for loss/damages/shortages must be promp~y filecj and forwarded to: HERSHEY FOODS CORPORAT1ON ATTN: CREDIT DEPARTMENT HE;R.SHEY, PA 17033 Refer 10 ll1is number on all Correspondence . INVoICe # 92395836 llNVOICE 01/16/20Q4 DATE N1MIOONYYV H Hershey Foods Corporation 1 DO Crystal A Drive Hershey, PA 17033 1023667 SHIP TO: CVS 150 INDUSTRIAL HIGHWAY NORTH SMITHFIELD RI 02896 PLEASE SEND CHECKS TO: Hershey Foods USA P,O. Box 640146 P)tlsburgh. PA 1526+0146 PO NumlJBr 'J'Mnk you for your order Rg ps Tr WHSE PRICE Carrisr Ordllr Dilto ShIp D.3ts Rllq Dsl Dale SOL NQ Questlons1 Ploaso eall 1.800-233-214:5 840101 1918 4 NPAT '013012003 1452216 : 01/1612004 0110612004 2488700 QUANTI1'Y U C\1Stomol' UPC Promo Promo ExtDnd&d 0 StDl:k Itom II&n\ ~occrllltlon Unit Price Net Unit PrIce Ordered Shipped M Numbor code COllell AlloWilnCll Not AmQunt . lIAilnufllcturet 10: 3400IJ 2550 2550 CA 177837 13902 E !<lss 10DZ 24 iii 46.3200 2.1600 44.1600 112608,00 TOTALS , Sblp Qty Gro&& Wi loJBtWt Palllrl5 Order No i DIV G~:1 Promo I!xtBnded Net Tot'll . 2550 4' '1a.75 3R.250.00 34,00 '114794 00 118115.00 0508.00 112.608.00 ~~*~4*..*****.****~+***~.PROMOT10NS***~*+****..**********._.* !Cede OflllQrJptlorl No Amount !codO DMc:rlpiJon No Amount a 2004 CPA Accrual cvS BLUE eM 4104113 2.1e TERMS NET INVOICE $ : 2%/40 net 41 112,608.00 i EXHIBIT If paid by: ,. PilY the l:Jst amount 11 i 02/25/2004- the dlscollnt 10 not 3 earned. MM/PO/Y"YYY B Discount of: $ 2.362.32 .-. Exhibit B v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-423-2004 CHARGE: THEFT BY UNLAWFUL TAKING OR DISPOSITION :-AFFIANT: PTL. GLENN ADAMS COMMONWEALTH THOMAS W. HOUSER OTN: L184607-3 IN RE: SENTENCE ORDER OF COURT AND NOW, September 28, 2004, Thomas W. Houser, having appeared in open court together with the Public Defender, Linda Hollinger, Esquire, and the Court having received a presentence investigation report, sentence of the court is that the defendant pay the costs of prosecution, that he make restitution to the victim at a hearing to be held by the court, the time and place of which to be agreed upon by counsel and the victim, and the court thereafter being notified, and that he be placed in the Intermediate Punishment Program for a period of seven years conditioned upon program compliance. The first nine months to be served in restrictive intermediate punishment to include confinement in the Cumberland County Prison, and the court will allow. the defendant to be placed on the Work Release Program. By the Court, ~jl\.:. ''':;~;. C"""\.'-." t_..... ''''i -:nJ Daniel J. Sodus, Esquire Senior Assistant District Attorney Linda Hollinger, Esquire Assistant Public Defender hO :11 V h- LiD [iOOl Probation Office CCP (jl :'1 "'-"1.~ ,,) She r i f..tY.:.J S tl ,,;~J Victim Services J6,:~"~Q\L_ :mtf ,.", (. \,l\__ ~~ COMMONWEALTH IN THE COURT OF CO:M:MON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-423-2004 v. CHARGES: (1) Theft by Unlawful Taking THOMAS HOUSER OTN: L184607-3 AFFIANT: Det. Glenn Adams 8 "'-' l,-';-...l ::~ ORDER C:J PI c:-) "'TiJ ".:"'~.'!.n, L.J 7.~'';'~ !::::J ti AND NOW, this ']0 .dayof ])~ -0 , 2004, pursuant to a \~J u.~'J] G~;:~ RE: Restitution en stipulation by the Commonwealth of Pennsylvania, by and through Daniel 1. Sodus, Esq., Assistant District Attorney, and the Defendant, Thomas Houser, by and through counsel, Linda S. Hollinger, Esq., it is so ORDERED that restitution be set in the above-captioned matter at $112,608.00. Pursuant to further stipulation by the parties, the Hampden Township Police Department is hereby ORDERED AND DIRECTED to turn over to NAP A Transportation the sum of $9,830.00, said sum having been confiscated from the Defendant, Thomas Houser. Pursuant to further stipulation by the parties, the Clerk of Courts is ORDERED AND DIRECTED to credit the Defendant, Thomas Houser, for the $9,830.00, against the amount of restitution due and owing in the above-captioned matter. BY THE COURT: A TRUE COpy FROM RECORD In Testimony whereof, I here unto set my hand and thefAai of said Court ~t Carlisle, PA. Thl day of . . 20@ ~ ./1;L 11\\ STIPULATION The Co onwealth ofPeIlI).{lylvania and the Defendant hereby stipulate to the entry of j'bove- rder in the ab /captioned ~ . . / / , ~ ... -d0-.2 a(~~ Lmda S. Hollinger, Esq. . For the Defendant Distribution: District Atterney's Office Public Defender's Office Clerk of Courts Hampden Township Police Department, 230 S. Sporting Hill Rd., Mechanicsburg, PA 17050 n ,- ,...., '--, ....,... =:::t = i-' ,c.- "..~..1 C:J .......j ~-~ Il :".n ...ra.;mr:l' r ,,;:-; ,~'m'C9 '....j U c::J ;".:::::....,~ i\ 'J d U ~~ :0" \-f) ... .. .c JAM - 4 2004 Copies delivered 00 . VERIFICATION I, Ron Accomando, President of Napa Transportation, Inc., Agent for The Hershey Company f/k/a Hershey Foods Corporation, being duly authorized to make this verification, do hereby verify that the facts stated in the foregoing 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. 94904 relating to unsworn falsification to authorities. Date: cr I, 'II DC! (2[/ L~ . ., r. Ron l\ccomando THE HERSHEY COMPANY f/kIa HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned Paralegal employed by the Law Offices of Leslie D. Jacobson, hereby certifies that a true and correct copy of the Amended Complaint has been duly served this day, by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: Mr. Joseph Homing Homing's Roadside Market 901 South College Street Myerstown, P A 17067 George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Homing Mr. Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Dated: September 15, 2006 Chad Julius 8150 Derry Street Harrisburg, PAl 7111 717.909.5858 FAX: 717.909.7788 5 ...... 0/. Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LA W JUDGMENT Judgment is herby entered in favor of Plaintiff the Hershey Company f/k/a Hershey Foods Corporation by their agent Napa Transportation, Inc., and against Defendant Thomas Houser in the amount of $102,778.00. Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT To the Prothonotary: Please enter judgment of default in favor of Plaintiff the Hershey Company and against Defendant Thomas Houser pursuant to Pa.R.C.P. 237.1 and Pa.R.C.P. 103 7(b) for Defendant Houser's failure to plead to the complaint in this action within 20 days from the date of service thereof, Defendant was served with the complaint on July 26,2006, and Defendant's answer was due to be filed September 5,2006. Attached as exhibit "A" is a copy of plaintiff's written Notice of Default, which I certify was mailed by regular mail to the Defendant at his last known address, which is at least 10 days prior to the filing of this praecipe. Please enter judgment in the amount of $1 02,77 . L slie D. Jacobson Supreme Court LD # 8150 Derry Street Harrisburg, P A 17111 Phone: 717.909.5858 I Date: September 15, 2006 . . Exhibit A . - e THE HERSHEY COMPANY fi'k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF e IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, CIVIL ACTION - LAW DEFENDANTS To: Joseph Homing, c/o George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 To: Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Date of Notice: August 23, 2006 NOTICE OF DEFAULT YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THE MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, P A 17013 Dated: August 23,2006 .- . e THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS e IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned Paralegal employed by the Law Offices of Leslie D. Jacobson, hereby certifies that a true and correct copy of the Default Notice has been duly served this day, by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Homing Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Dated: August 23, 2006 Chad Julius 8150 Derry Str t Harrisburg, P A 17111 717.909.5858 FAX: 717.909.7788 ,,, ". ill Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION,INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LA W CERTIFICATE OF SERVICE AND NOW, this 15h day of September, 2006, I, Chad Julius, legal assistant at the Law Offices of Leslie D. Jacobson, attorney for the Plaintiff, hereby certify that on this day I served the within document upon the person indicated below, first class mail, postage prepaid which Mr. Thomas Houser 294 Royal Road Palmyra, Pennsylvania 17078-9765 Dated: September 15, 2006 Chad Julius 8150 Derry Street Harrisburg, PAl 7111 717.909.5858 FAX: 717.909.7788 "6t.. ~~-:-O " =-= -3 8 ~ fj ::J:. ~ t'-,-"" 1 'I (..",:: 1....'< .I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THE HERSHEY COMPANY flkla HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. vs. NO. 06-322 CIVIL TERM JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER PRELIMINARY OBJECTIONS OF DEFENDANT. JOSEPH HORNING TO PLAINTIFF'S AMENDED COMPLAINT Defendant Joseph Homing, d/b/a Horning's Roadside Market, by and through his undersigned counsel, Christianson Meyer, files preliminarily objections to Plaintiff's Amended Complaint, based upon the following: I. PRELIMINARY OBJECTION PURSUA~T rQJ!~ _RULE OF CIVIL PROCEDURE 1028(a)(3) INSUFFICIENT SPECIFICITY IN A PLEADING 1. Plaintiff's amended complaint sets forth in Paragraph 1 that Plaintiff is The Hershey Company. 2. In Paragraph 4 of Plaintiff's amended complaint, it is set forth Plaintiff has authorized Napa Transportation, Inc. to act as its agent in all matters pertaining to this lawsuit. 3. Plaintiff has failed to state with sufficient specificity how Napa Transportation, Inc. was authorized by plaintiff to act as Its agent. Said specificity is required In order for Defendant to respond to the allegation that Napa Transportation, Inc. has been authorized to act as Plaintiff's agent. 4. The verification is signed by the president of Napa Transportation, Inc., agent for The Hershey Company. WHEREFORE, Defendant, doseph Homing, requests that Plaintiff's complaint be dismissed for insufficient specificity in a pleading. II. PRELIMINARY OBdECTION PURSUANT TO PA. RULE OF CIVIL PROCEDURE 1028(a)(6) PENDENCY OF PRIOR ACTION 5. Paragraphs 1 through 4 are Incorporated herein by reference as though set forth at length. 6. As set forth in Paragraph 15 of the Plaintiff's amended complaint, an action was previously filed in the Court of Common Pleas of Lebanon County to Action No. 2004-01648 against Defendant Horning by the alleged agent, Napa Transportation, Inc. 7. The Court of Common Pleas of Lebanon County granted Defendant Horning's motion for non-suit in that matter. 8. Napa Transportation, Inc. has appealed that decision to the Superior Court of Pennsylvania. 9. Additionally, a writ of summons was filed in the Court of Common Pleas of Lebanon County to Action No. 2006-00115 on .January 17, 2006 by Plaintiff and against Defendant Horning, a copy of which is attached hereto, marked Exhibit A and made a part hereof. WHEREFORE, Defendant, .Joseph Homing, requests that Plaintiff's complaint be dismissed due to the pendency of a prior action. ~ , George E. Christianson, ID# 06310 Christianson Meyer 411 Chestnut Street Lebanon,Pa.17042 (717) 273 1651 Attorney for Defendant Homing i( (~ Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/kIa HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS LEBANON COUNTY, PENNSYLVANIA CASE NO.: \~DDG, DO/If v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET DEFENDANT CNIL ACTION - LAW r--> = ~ WRIT OF SUMMONS , --' TO: JOSEPH HORNING 901 South College Street Myerstown, Pennsylvania 17067 -" /" ~ (), '.....1 YOU ARE HEREBY NOTIFIED THAT THE HERSHEY COMPANY F/KIA HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. HAS COMMENCED AN ACTION AGAINST YOU. Date: QI-rl- 0 ~ ~ UJ {1;;IJj Prothonotary . ' By: 11 III"tliLLl 1. f~U\(,tLLUJ ~ A. .. Leslie D. Jacobson . The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS i. \. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 0(", 31;}.. ~ IJ-.- CNIL ACTION - LAW (') r--.:l C) C:-. ~~ ::':~J OJ c.~ : :::! '- ,., :' .;a: r' E .. , ~ _. ~~ - --l .-\ ,.,:...\ n_ ~. .'. > '-, ~!:: -- [n / c - ~:.::j -- -.. L~ ~n ._::, C'J .< PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue the attached writ of summons in the above captioned action and serve it on the listed defendants. Date: January 17,2006 LAW OFF CES OF LESLIE DAVID JACOBSON Leslie D. Jacobson ID # 52673 Attorney for Plaintif 8150 Derry Street Harrisburg, P A 17111.5260 717.909.5858 717.909.7788 [fax] CERTIFICATE OF SERVICE I, SUE A. RODKEY, an employee of CHRISTIANSON MEYER, 411 Chestnut Street, Lebanon, Pennsylvania, 17042, do hereby certify that I served by U.S. First Class Mail, postage paid, on September cQ J , 2006, a copy of the within Preliminary Objections to Plaintiff's Amended Complaint, addressed to the following: Leslie David .Jacobson, Esquire 8150 Derry Street; Suite A Harrisburg, Pa. 17111.5260 Attorney for Plaintiff (:) c:: -,.. ~.::,,~ -0 r>"~ Q;:' ...._~, . ' - -~.;V ~ Cr, . ...',<' \2 L- --\ -<. r-":> c::::> ,::? 0""' t.':l rn -1;) r'" ()1 -0 -;r; r:-? ~ ~ :r: -r. P'r'" -o~ :,:; ~-I l~~~' 6:;~ ';"\:'n 0' --\ "'):>" :.?l x::- (..,.,1 o " Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORA nON BY THEIR AGENT NAPA TRANSPORT A nON, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANT S IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. The matter to be argued is Defendant Joseph Homing's Preliminary Objections filed against Plaintiff The Hershey Company's Complaint. 2. Counsel arguing the matter are: a. Counsel for Plaintiff: b. Counsel for Defendant: Leslie D. Jacobson Supreme Court J.D. # 52673 8150 Derry Street Harrisburg, PAl 7111 George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: October 1, 2006 lie D. Jacobson Supreme Court LD # 8150 Derry Street Harrisburg, PAl 71 Attorney for Plaintiff L~ trV) 2673 / .. " "t THE HERSHEY COMPANY f/k/a HERSHEY FOODS CORPORA nON BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINnFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL AcnON - LAW -It. CERTIFICATE OF SERVICE AND NOW, this tt day of October, 2006, I, Chad Julius, legal assistant at the Law Offices of Leslie D. Jacobson, attorney for the Plaintiff, hereby certify that on this day I served the within document upon the person indicated below, first class mail, postage prepaid which George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Homing Dated: October 1, 2006 Chad Julius 8150 Derry treet Harrisburg, PAl 7111 717.909.5858 FAX: 717.909.7788 o ,) (--) =i1 -\ v:> <? w (..) THE HERSHEY COMPANY f/kla : IN THE COURT OF COMMON PLEAS OF HERSHEY FOODS CORPORATION : CUMBERLAND COUNTY, PENNSYLVANIA BY THEIR AGENT NAPA TRANSPORTATION, INC., PLAINTIFF V. JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET AND THOMAS HOUSER, DEFENDANTS : 06-322 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT. JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this BEFORE BAYLEY. J. AND HESS. J. ORDER OF COURT f7~ day of December, 2006, the preliminary objections of defendant, Joseph Horning d/b/a Horning's Roadside Market, to plaintiff's amended complaint, ARE DISMISSED. Leslie David Jacobson, Esquire For Plaintiff , /\ !J-,-blP ~ ~ yI? George E. Christianson, Esquire For Defendant :sal >- ex; ~ UJO o;? i.t:r: nt5 6(1:.: u;o.... :::::!LlJ U-.jf: I.l... o 9 x ca: f;~ ~~~ -,' .,...' ..:.::.;.... . :}~~ . (j) ~] ~:.; ~~H~ ..;;;;;. :s o r- I U W o ...0 = c::;> c-.J , INT~ COURT OF COM ON PLEAS OF CUMBERLAND COUN ,PENNSYLVANIA I I CIVIL ACTI~N - LAW I THE HERSHEY COMPANY f1kJa HERSHEY FOODS CORPORATION BY THEIR AGENT NAPA TRANSPORTATION, INC. Ys. NO. 06-322 CIVIL TERM .JOSEPH HORNING d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER ANSWER TO fOMPLAINT I I AND NOW comes the Plaintiff and, i. response to the Complaint, respectfully I I I I alleges as follows: : I 1. Denied. It is denied that the Plaintiff is the Hershey Company or that any authority was granted to any other party to sue on behalf of the I I , Hershey Company. 2. Admitted. I I I I 3. Denied. The answering Defen~ant, .Joseph Homing, has no knowledge I I of the whereabouts of Thomas I Houser. I 4. Denied. It is denied that Her~hey has authorized Napa Transportation I I to act as its agent in all matte,s pertaining to this lawsuit. I I I I ... , 5. Denied. Upon reasonable i~vestigation, the truth of the allegation I I I cannot be ascertained and pr10f is demanded thereon. i 6. Denied. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereon. 7. Denied. Upon reasonable Investigation, the truth of the allegation cannot be ascertained and prqof is demanded thereon. 8. Denied. Upon reasonable i~vestigation, the truth of the allegation cannot be ascertained and pr~of is demanded thereon. I I 9. Denied. Upon reasonable i vestigation, the truth of the allegation cannot be ascertained and pr of is demanded thereon. 10. Admitted in part, denied in p rt. It is admitted that Defendant Homing purchased the chocolates. It 5 denied that the amount of the purchase price is correct as stated. 11. Admitted. 12. Denied. Upon reasonable investigation, the truth of the allegation cannot be ascertained and pr~of Is demanded thereon. 13. Denied. Upon reasonable i vestigation, the truth of the allegation cannot be ascertained and pr of is demanded thereon. 14. Denied. Upon reasonable i vestigation, the truth of the allegation cannot be ascertained and pr of is demanded thereon. 15. i I Admitted. By way of furthe~ answer, it is alleged that, after trial, judgment was entered againS~ the Defendant and the matter is now on appeal to the Superior Court. 16. Admitted. This is a conclusion of law to which no response is required. As a matter of law, the same i$ admitted. 17. Denied. It is denied that the 1revlous judgment can be tennlnated by a subsequent case, since the is ues before the case are identical. COUNT I - C NVERSION 18. The answers to Paragraphs through 17 are incorporated herein by reference as though set forth t length. sell the purchased items in hi place of business in Lebanon County; it 19. Admitted in part, denied in pa . It is admitted that the Defendant did is denied and proof is demand d that the items were stolen. 20. Admitted. 21. Denied. It is denied that Defe,.dant, Horning, in any way, deprived the Plaintiff of the rights to their Pfperty, without lawful justification. 22. Denied. This is a conclusion t which no response is required, however, the same is denied that the De endant, Homing, in any way, acted in an outrageous, reckless or indiffe ent manner. 23. Admitted in part, denied in part. It is admitted that Horning refused to repay funds to Napa. It is denied that any claim was ever made by the Hershey Company for reimbursement. WHEREFORE, Defendant Horning respectfully requests this Honorable Court to dismiss the complaint filed by the Plaintiff. -------- ge E. hristianson, ID# 06310 Christianson Meyer 411 Chestnut Street Lebanon,Pa.17042 (717) 273 1651 Attorney for Defendant Homing CERTIFICATE OF SERVICE I, SUE A. RODKEY, an employee of CHRISTIANSON MEYER, 411 Chestnut Street, Lebanon, Pennsylvania, 17042, do hereby certify that I served by U.S. First Class Mail, postage paid, on December 18, 2006, a copy of the within Answer to Complaint, addressed to the following: Leslie David .Jacobson, Esquire 8150 Derry Street; Suite A Harrisburg, Pa. 17111.5260 Attorney for Plaintiff Mr. Thomas Houser 294 Royal Road Palmyra, Pa. 17078.9765 ~ ().y(b ./ Sue A. Rodkey (") r- ~~~ ~ <.~.J = CP o -n :r-n rni"'c; -nn-1 ""-;C" C1 rn (,-) \...0 '".I,L\ "'L: 5:", :f c",f (Sirl -I ~ ~ ....... :i: "'-'> o w Leslie D. Jacobson The Law Offices of Leslie D. Jacobson Attorneys for Plaintiff 8150 Derry Street, Ste. A Harrisburg, Pennsylvania 17111-5260 Ph: (717) 909-5858 Fx: (717) 909-7788 THE HERSHEY COMPANY flkla HERSHEY FOODS CORPORATION BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 06-322 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO SETTLE. SATISFY. AND DISCONTINUE To the Prothonotary: Kindly mark the above action settled, satisfied, and discontinued with prejudice as to Defendant Joseph Homing, d/b/a Homing's Roadside Market ONLY. Dated: January -:11-, 2007 Respectfully Submitted, slie D. Jacobson, ID No. 52673 8150 Derry Street Harrisburg, P A 17111 (717) 909-5858 Counsel for Napa Transportation, Inc. 1 ,- - THE HERSHEY COMPANY flk/a HERSHEY FOODS CORPORA nON BY THEIR AGENT NAP A TRANSPORTATION, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CASE NO.: 06-322 CIVIL TERM v. JOSEPH HORNING. d/b/a HORNING'S ROADSIDE MARKET and THOMAS HOUSER, DEFENDANTS CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned Paralegal employed by the Law Offices of Leslie D. Jacobson, hereby certifies that a true and correct copy ofthe within Praecipe has been duly served this day, by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: George E. Christianson Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17402 Attorney for Defendant Date: J anuary ~, 2007 C ad Ju i , Paralegal Law Of c s of Leslie D. Jacobson 8150 Derry Street Harrisburg, PAl 7111 (717) 909-5858 2 - -- () ./Q.. AJ l V't \t- . 0 (> I'~.,,) () C-.) ;j -on -.,--1 - f! ~ ~ '-0 ;- ~ --, r E f" -.- , E -I:- ...- r ",