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NO. 39
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PHOENIX POULTRY CORP.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERlAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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JACOB FLEISHMAN AND
SONS, INC.,
Defendant
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94-6388 CIVIL TERM
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conferencc held Deccmber 27, 1995, were Anthony Nestico, Esquire,
attorney for the plaintiff, and Leslie B. Handler, Esquire, attorney for the defendant.
The complaint in this matter alleges that the defendant ordered and received chicken
from the plaintiff with a total value of $25,080.20. The defendant, while not disputing the fact
that they had been billed this amount, claim that the money is not owed because the shipments
of chicken arrived in an unusable condition.
This is for trial without a jury expected to last one-half day. It has been scheduled for
Wednesday, February 14, 1996, at 9:30 a.m.
December 27, 1995
"r':'.d.
Anthony Nestico, Esquire
For the Plaintiff
Leslie 8. Handler, Esquire
For the Defendant
:rlm
FlLF.o-.ornCE
0:: T: 'I; p':wr.~~mtRY
95 O~G 29 ~\;i 6: 51
CUtv:llERlj~m CGUilTY
. PENi\1'3YLl/tM\
, ,.
,.,
PHOENIX POULTRY CORPORATION, :
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. LP:3 33'CIVIL 1994
CIVIL ACTION
v.
JACOB FLEISHMAN & SONS, INC.,
Defendant
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 twe~ty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attomey and filing In writing with the Court your defenses or objections to the claims
set forth against you. You are wamed that If you fall 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 10so6 money or property or other rights important
to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP:
Pennsylvan ia Lawyer Referral Service
Pennsylvan ia Bar Association
P.O. Box 186
Harrisburg, PA 17108
(800) 692-7375
Central Pennsylvan ia Legal Services
213A N. Front Street
Harrisburg, PA 17101
(800) 932-0356
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas slgulentes, usted tiene viente (20) dias de plazo
al partir de la facha de la demanda y 18 notificacion. Usted debe presentar una
. apartencia escrits 0 en persona 0 por abogado y archivar en la corte en forma escrtts
sus defensas 0 sus objecianes alas demandas en contra de su persona. Sea
avlsado que si usted no se defiende, la corte tomara mEldldas y puede entrar una
orden contra usted sin previa avlso 0 notificaclon y por cualquler queja 0 allvio que ..
PHOENIX POULTRY CORPORATION,: IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
Plaintiff PENNSYLVANIA
v.
NO.
CIVIL 1994
JACOB FLEISHMAN & SONS, INC.,
CIVIL ACTION
Defendant
COMPLAINT
AND NOW, Phoenix Poultry Corporation, by and through Its attomeys.
Hetrick, Zaleski & Pierce, P.C., flies this Complaint against Jacob Fleishman & Sons,
Inc. and offers in support thereof the following:
PARTIES
1. Plaintiff is Phoenix Poultry Corporation (hereinafter 'Phoenix'), with a business
address of 70 Konhaus Road, Mechanlcsbu rg, Pennsylvania, 17055.
2. Defendant is Jacob Fleishman & Sons, Inc. (hereinafter 'Fleishman'), with a
business address of 1177 N.W. 81st Street, Miami, Florida, 33150.
3. Phoenix is a producer of free range chicken.
4. Free range chicken is prodUCed without the use of antibiotics or other drugs.
5. This Honorable Court has jurisdiction over this matter as the orders were
placed at Phoenix's offices In Cumberland County, Pennsylvania, and payment
was due to be made In Cumberland County, Pennsylvania.
6. Between April and July, 1994, Fleishman ordered and received free range
chicken prodUCed by Phoenix with a value of $25,062.20, as discussed below.
Coum I . .REACH OF CONTRACT
7. The foregoing numbered paragraphs are Incorporated herein by reference.
8. At alltlm.. material hereto, Howard Fleishman was an authorized
repr..entatlve of Fleishman.
9. On April 20, 1994, Howard Fleishman placed an order with Phoenix for 868
cases of free range chicken parts.
10. The cost of the order totaled $11,187.20. A copy of the Invoice Is attached
hereto as Exhibit 'A'.
11. Phoenix shipped Fleishman's order on April 20, 1994, through C & C Trucking,
Inc. (hereinafter 'e & C').
12. A copy of the bill of lading Is allached hereto as Exhibit 'B'.
13. Fleishman received the order on April 22, 1994.
14. Under Ihe lerms of Ihe order, Fleishman agreed to pay for the order within ten
(10) days of receipt of the order.
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15. Payment for the order was due ,,0 later than May 2, 1994.
18. To date, Fleishman has failed and refused to make payment for the order.
WHEREFORE, Phoenix respectfully requests that this Honorable Court enter
judgment In Its favor in the amount of $25,082.20, together with Interest, attorney f...,
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and cosls of this suit
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COUNT II . 88EACH OF CONTRACT
17. The foregoing numbered paragraphs are Incorporated herein by reference.
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18. On May 3, 1994, Howard Fleishman placed an order with Phoenix for 4e0
casu of free range chicken parts.
19. The cost of the order totaled $4,095.00. A copy of the Invoice Is attached
hereto as Exhibit .C..
20. Phoenix shipped Fleishman's order on May 3, 1994, through KLLM, Inc.
21. A copy of the bill of lading Is attached hereto as Exhibit .0..
22. Fleishman received the order on May 6, 1994.
23. Under the terms of the order, Fleishman agreed to pay for the order within ten
(10) days of receipt of the order.
24. Payment for the order was due no later than May 16, 1994.
25. To date, Fleishman has failed and refused to make payment for the order.
WHEREFORE, Phoenix respectfully requests that this Honorable Court enter
judgment In its favor in the amount of $25,082.20, together with Interest, attorney fees,
and costs of this suit.
COUNT III . 'REACH OF CONTRACT
26. The foregoing numbered paragraphs are incorporated herein by reference.
27. On July 12, 1994, Howard Flei!lhman placed an order with Phoenix for 1150
cases of free range chicken parts.
28. The cost of the order totaled $9,800.00. A copy of the Invoice is attached
hereto as Exhibit .E..
29. Phoenix shipped Fleishman's order on July 12, 1994, through C , C.
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30. A copy of the bill of lading Is attached hereto u Exhibit "F".
31. Fleishman received the order on July 14, 1994.
32. Fleishman paid C & C $50.00 to unload the order on July 14, 1994.
33. Under the terms of the order, Fleishman agreed to pay for the order within ten
(10) days of receipt of the order.
34. Payment lor the order was due no later than July 24, 1994.
35. To date, Fleishman has lalled and refused to make payment for the order.
WHEREFORE, Phoenix respectfully requests that this Honorable Court enter
judgment In Itslavor In the amount of $25,082.20. together with Interest, attomey I...,
and costs of this suit.
Respectfully submitted,
HETRICK, ZALESKI & PIERCE, P.C.
Date:
II /1 Iff
10 South Market Square
Suite 500
P.O. Box 1265
Harrisburg, PA 17108-1285
(717) 238-9581
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PHOENIX POULTRY CORPORATION, : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
Plaintiff PENNSYLVANIA
v.
: NO.
CIVIL 1994
JACOB FLEISHMAN & SONS, INC., : CIVIL ACTION
Defendant
VERIFICATION
I, George D. Oppenheimer, General Manager of Phoenix Poultry Corporation,
hereby verify that the averments contained In the foregoing Complaint are true and
correct to the best of my knowledge and belief. I understand that any false
statements herein are made subject to the penalties of 18 Pa. C.S. 14904 relating to
unsworn falsification to authorities.
Date: /Q- ~- 'ft/"
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FARM. (717) eel.3311
FAX'(717)7~0488
MAKE INVOICE PAYMENT TO:
PHOENIX TRY CORPORATION
Dale: '~L
0rdII' PDl By: jj, Ai AtZIO
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ORDER NO. 003568
QUANTITY
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HRAY RACK
ITEM DESCRIPTION
CHICKEN BROILER SHELLS 3.31l1 LBS.
CHICKEN FRYERS IWHOLEI
WHOLE ROASTER CHICKENS 41l1-11l1 LBS.
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CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT
CHICKEN LEGS. REGULAR
CHICKEN LEGS < QUARTERS
CHICKEN DRUMSTICKS
CHICKEN THIGHS
CHICKEN THIGHS. BONELESS. SKINLESS
CHICKENWIIIGS ..L ~L"I D.. 'R.
"l'HIr.KhlWlNn DAuuMEnES
CHICKEN BUFFALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
CHICKEN SAUSAGE. HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE. BREAKFAST
-...- -. SAUSAGE. PLAINIMILD ITALlANI-r,.,~ t/~:I-"~_
WHOLE YOUNG TURKEY -----,-
WHOI E TURKEY BREAST
TURKEY BREAST BONELESS W/SKIN, NET___ _ .,___ ____.d
WEIGHT
UNIT PRICE TOTAL PRIC
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j . SHIPPING INSTRUCTIONS.
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FARM' (717) 681.3377
FAX' (717) 780-0488
MAKE INVOICE PAYMENT TO:
PHOENIX POULTRY CORPORATION . J
DaM' J}JIil'1 t\ /t!t/y
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Order PIIcId By: j,J,. Ili. 'j I' _ . MECHANICSBURG, PA 17055
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ORDER NO.
003634
QUANTITY ITEM DESCRIPTION I.~~~ I WEIGHT I UNIT PRICE 'TOTAL PRIC~
HRAY RACK
CHICKEN BROILER SHELLS 3.31'0 LBS.
CHICKEN FRYERS /WHOLE! .- ,
WHOLE ROASTER CHICKEHS 4y.-eY. LBS.
I CHICKEN BREAST. BnNEL"SS SKINLEL u__ .------
~;;-^..." ~~& ..._.m'
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CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT
CHICKEN LEGS. REGULAR ,-
CHICKEN LEGS. QUARTERS
J 6'1) CHICKEN DRUMSTICKS --;p, . I'; A'./J;) ."iTA ,Q ';/:)0 ~~
CHICKEN THIGHS -_.- -,--
CHICKEN THIGHS. BONELESS SKINLESS
CHICKEN WINGS
CHICKEN WING DRUMMETTES .
CHICKEN BUFFALO WINGS -- r---
--
CHICKEN NECKS .
C>.~O CHICKEN BACKS %. /0. ,"(10 . /R. I D,,{)I[!.
!;'n CHICKEN LIVERS ~ /. ~&ln" .:;).-- .'17.;.~ "':
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CHICKEN SAUSAGE. HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE. BREAKFAST
CHICKEN SAUSAGE. PLAIN (MILO ITALIAN) ,-- ---.
WHOLE YOUNG TURKEY
WHOLE TURKEY BREAST -
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TURKEY BREAST BONELESS W/SKIN, NET _...,- -"
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TOTAL CASES . SHIPPING INSTRUCTIONS. "-"- "./ TOTAL .11 t~ ()f('!1
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WHUNGfON FARM'S COpy
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STOPOFFS
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BUCK HEAD MEA T
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FARM I (717)1181.3377
FAX117t7) 780-0488
ORDER NO. 003928
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70 KONHAUS ROAD _ ,
MECHANICSBURG, PA 17065 .3 0 S - (, q (, . 0 Sf 0 I. ."",
Tdlephone No, .~ 0 j;i - (, 9 c: -;t. ~ S' 0
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QUANTITY ITEM DESCRIPTION I r.J.~~ RACK WEIGHT UNIT PRICE TOTAL PRICI
CHICKEN BROILER SHELLS 3.311 LBS.
CHICKEN FRYERS /WHOLE! -
WHOLE ROASTER CHICKENS 411-811 lBS.
I CHICK"N BREAST . BONELES~ SKINLESS
. BONELESS. W/SKIN
CHICKEN BREAST. WHOLE .
CHICKEN BREAST. SPLIT
CHICKEN LEGS . REGU~.!L_
CHICKEN LEGS. QUARTERS
.!>' II (J f.to. CHICKEN DRUMSTICKS -, :l.6 (lolJ -;;;1 '1/JMI.,^
. .
CHICKEN THIGHS -.
CHICKEN THIGHS. BONELESS. SKINLESS
CHICKF.N WINGS
CHICKEN WING DRUMMEnES
CHICKEN BUfFALO WINGS ~-
CHICKEN NECKS
.
~ t:'1'l.,~ CHICKEN BACKS I A./ n lJ.lL /"\ /l.Sfd.oo
'1 300 CHICKEN t:WJIIS '.B ,1 CK 5: I&>; tJ D D. .1'6 j4JJJ d II
.c., loSO> CHICKEN SAUSAGE. HOT & SPICY ~ f.. C L'l (l I~ ,'" i'.),} .,,'LJ r--,
CHICKEN SAUSAGE. CHEESE & PAns lEY
----~ --~---_.-
CHICKEN SAUSAGE. BREAKFAST
., --
CHICKEN SAUSAGE. PLAIN (MilD ITALIAN)
WHOLE YOUNG TURKEY
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WHOLE TURKEY BREAST -, '"
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TOTAL CASES . SHIPPING INSTRUCTIONS. TOTAL --B
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Fleishman placed three separate orders for free range chicken. The order. had a
total value of $25,082.20. Fleishman received each separate order It placed with
Phoenix. Fleishman ordered 868 cases of chicken on April 20, 1994; 450 cases of
chicken on May 3,1994; and 1150 cases of chicken on July 12, 1994. While
Fleishman ordered the chicken, received It, and apparently felt It was a quality product
("slut order was by far Its largest), Fleishman has refused to pay for the chicken.
IV. Argument
A. The Court should review the evidence In the light most
favorable to Phoenix.
Preliminary Objections may be sustained only when they are clear and free
from doubt. Powers v. Pennsylvania Deoartment of H,alth, 121 Pa. Commonwea"h
Ct. 321, 550 A.2d 857, app. den'd., 524 Pa. 836, 574 A.2d 75 (1988). Any doubts
concemlng a preliminary objection must be resolved against the party filing the
obJection. Aetna ElflCtroolatlng Co. v. Jenkins, 335 Pa. Superior Ct. 283, 484 A.2d
134 (1984). When deciding a preliminary objection for lack of jurisdiction which, If
sustained, would reslllt In the dismissal of the action, the Court must consider the
evidence In the light most favorable to tho non-moving party. Derman v. Wllalr
Services. &,404 Pa. Superior Ct. 136, 590 A.2d 317, app. den'd., 529 Pa. 621, 600
A.2d 537 (1991).
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B. Because the Defendant has purposely availed Itself of the
privilege of acting within Pennsylvania, It haslnvokecl the
benefits and protections of Pennsylvania laws and Is
therefore subject to the Court's Jurisdiction.
The bases of personal jurisdiction over persons outside of Pennsylvania is set
forth at 42 Pa. C.S.A. 85322. Courts of this Commonweahh have personal jurisdiction
of a person as to a cause of action If the person transacts business In the State. 42
Pa. C.S.A. 85322 (a) (1). "Transacting business" Includes:
(I) The doing by any person In this Commonwealth of a
series of similar acts for the purpose of thereby realizing
pecuniary benefit or otherwise accomplishing an object.
(II) The engaging In any business or profesSion within this
Commonwealth, whether or not such business requires
license or approval by any govemment unit of this
Commonwealth.
42 Pa. C.S.A. ~322 (a) (1).
A Pennsylvania court may exercise personal Jurisdiction to the fullest extent
allowed by the United States Conslltutlon. RI9hard T. Bvmes Co.. Inc. v. IluIJ
Automation. Inc., 415 Pa. Superior Ct. 549, 609 A.2d 1360 (1992). Pennsylvania's
long-arm statute provides that Its jurisdiction may be "based upon the most minimum
contact with this Commonwealth allowed under the Constitution of the United States."
42 Pa. C.S.A. 85322 (b).
In order for a state to assert jurisdiction over a non-resident defendant, one of
two tests must be met. Slota v. Moorlng~. LId.. 343 Pa. Superior Ct. 96, 494 A.2d 1
-3-
(1985); Beatrice Foods Co. v. Proctor & Sohwartz. Inc., 309 Pa. Superior Ct. 351, 455
A.2d 648 (1992). The first test Is:
. . . the defendant must have purposefully availed Itself of the privilege of
acting within the forum state thus Invoking the benefits and protections of
Its laws. Hanson v. Denckla. 357 U.S. 235, 78 S.C!. 1228, 2 L.Ed. 2d
1283 (1958). Secondly, the cause of action must arise from the
defendant's activities within the forum state. Lastly, the acts of the
defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over it reasonable.
~, 494 A.2d at 3.4. (remaining citations omitted).
The Defendant In the mailer now before the Court meets the minimum contact
tests for jurisdiction as It has purposefully availed itself of the privilege of acting within
Penn&ylvanla. This Defendant placed orders totalling over $25,000 with the Plaintiff.
The Plaintiff shipped the chicken so ordered, and the Defendant received and
accepted the chicken. See, Complaint, Counts I . III. However, the Defendant
refused to pay for the poultry.
The Defendant's contacts with Pennsylvania are not limited to the several
orders It placed with Phoenix. George Oppenheimer, Phoenix's General Manager, has
ligned an Affidavit attesting to the fact that he had a minimum of 41 telephone calls
with representatives of Fleishman between April and August, 1994. See, Affidavit of
George Oppenheimer filed with this Court on March 3, 1995. These telephone calls
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Involved not only placing orders for chicken, but also Included dlscu88lons regarding
transporting, marketing, and selling the chicken. ~.
The crux of the Courrs jurisdictional analysis Is whether the Defendant's
conduct and connection with Pennsylvania are such that he should reasonably
anticipate being hailed Into court In Pennsylvania. Enole v. Enole, _ Pa. Superior Ct.
-,603 A.2d 654, 657 (1992), citing Wgrld.Wlde Volkswaoen CorD. v. Woodson, 444
U.S. 288, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980). The E1JgJJ Court held:
It Is essential In each case that there be some act by which
the defendant purposely avails himself of the privilege of
conducting activities within the forum State, thus Invoking
the benefits and protections of Its laws.
.EngJj, 603 A.2d at 657, citing atrber v. PltlJburoh Camino Coro., 317 Pa. Superior
Ct. 285, 484 A.2d 323, 327.328; see also, Proctor and Schwartz v. Cleveland Lumtll!
Qg., 228 Pa, Superior Ct. 12, 3233 A.2d 11 (1974).
The EnW.i Court held that a party who reaches out beyond one state and
creates continuing relationships and obligations with citizens of another state are
subject to regulation and sanction In the other state for the consequences of their
activities. EnW.i, 603 A.2d at 658, citing BurQer ~Ino COrD. v. Rudzewlcz, 471 U.S.
462, 105 SCt. 2174, 85 L.Ed. 2d 528 (1985).
In the Instant case, the Defendant has clearly reached out beyond Florida,
where the Defendant resides, to Pennsylvania, where the parties transacted their
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business. Fleishman's relationship with Phoenix was not a one time, fleeting
usoclatlon. Fleishman had dozens of contacts with Phoenix between April and
August of 1994. Out of those more than 40 separate contacts, Fleishman placed
orders for more than $25,000 worth of poultry.
Contrary to the Defendant's Implication that Its dealings with Phoenix were "an
Isolated single transaction," as asserted by Fleishman in Its Brief at Page 5, the orders
were not placed all at once. Rather, Fleishman placed orders for substantial amounts
of poultry In April, May, and July. Clearly, these contacts constitute a series of "similar
acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing
an object.' 42 Pa, C.S.A. 55322 (a) (1). Fleishman's voluntary, continuing relationship
with Phoenix, during which It regularly ordered poultry raised In Pennsylvania, Its
acceptance of that poultry, and Its frequent contacts with representatives of Phoenix,
clearly constitute a series of similar acts for a pecuniary benefit subjecting Fleishman
to this Court's jurisdiction.
Olender. Inc.. v. JQnker. et al., 50 Bucks C.L.J. 241, is a case that may prove
helpful to this Court In its consideration of the Defendant's Preliminary Objections. In
Olend9(. the plaintiff claimed that the defendant, who resided In Pennsylvania, had
substantial enough contacts with Pennsylvan ia so as to come under its jurisdiction.
QlIlKIJ[ flied a complaint against the defendant claiming damages as a result of
defendant's refusal 10 pay for certain services the plaintiff had provided to the
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defendant In New Jersey. As In the Instant case, the defendant flied preliminary
object lone, claiming that the court lacked jurisdiction over It.
The plaintiff argued that because It supplied the services, albeit In New Jersey,
because the defendants made 10. 12 telephone calls to Plaintiff's office In
Pennsylvania, and because the defendants refused to pay for the services. the
Pennsylvania court had jurisdiction over the out.of.state defendants. Id., at 242. The
court agreed.
CIting the SlQ1I and Beatrice Foods tests, the Court ruled that the defendant's
actions constituted sufficient contacts with Pennsylvania so as not to offend due
process rgqulrements. The court found that the defendants knew they were dealing
with a business located In Pennsylvania, it had contacted the plaintiff In Pennsylvania
on numerous occasions, and failed to pay for services It had accepted. The cause of
action arose from the defendant's actions In Pennsylvania. As a result, the Court held
" had Jurisdiction over the defendant.
The Instant case Is virtually Identical to Olender. Here, the Defendant knew It
was dealing with a buslnflss located In Pennsylvania, It had contacted the Plaintiff In
Pennsylvania on numerous occasions, and failed to pay for poultry it had accepted.
The cause of action arose from the Defendant's actions In Pennsylvania. Therefore,
the minimum contacts standards have been satisfied, and this Court has Jurlsdk:tlon
over the Defendant.
-7~
PHOENIX POULTRY
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 94.6388 CML 1994
CIVIL AcrION
Plaintiff
v.
JACOB FLEISHMAN & SONS, INC.,
Defendant
CERTIFICATE OF SERVI~E
t, ANTHONY J. NESTICO, ESQUIRE, hereby certify that on the 3rd day of
March, 1995, I served a true and correct copy of the foregoinl Brief of Plaintiff in
Opposition to Defendant's Preliminary Objections upon the followinl by depositin. same
in the U.S. mail, postale prepaid:
Leslie Handler
Handler and Wiener
P.O. Box 1177
319 Market Street
Hanisburl, PA 17108
,
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PHOENIX POULTRY CORPORATION, a IN THE COURT OF COnnON PLEAS
Phinti:ff a
I CU"BERLAND COUNTY, PENNSYLVANIA
v. I
I No. 6388 CIVIL 1994
JACOB FLEISH"AN & SONS, INC. , I
De1endant a CIVIL ACnON - LAW
PRE-TRIAL BRIEF OF DEFENDANT
I. ISSUE
DOES PLAINTIFF HAVE DEFENSES TO
THE THREE (31 nONETARY CLAInS
BEING ASSERTED BY PLAINTIFF?
n. BACKGROUND
PrevioUSly, thiB matter haa be..n before the court on a
jlOriadicticnal iSBue.
Defendant haB reaerved, in its Answer, the
jurisdictional iSBue in caae there ahould be appeals in thia matter, ~ut
recognizea t.hat. 11;11' purpoaea of the trilll 01 the c.ae, the
juriadictional iaaue h.a been determined.
The Complaint in this 'IIItter .ver. that Plaintiff i. the
producer o:f 1ree-range ChiCken, that betveen JUly, 1994, Defend.nt
ordered .nd received free-range chicken :from Pl.inti1f with. v.lue of
.2~, 080.20, aame being in three (31 .hipmenta, one being v.lued by
Plaintiff .t. .11,187.20, the aecond being v.lued .t .4,09~.00, .nd the
third being v.lued .t .9,800.00, .nd th.t Defend.nt h.a failed to ..ke
p.yment.
De1end.nt, in it. Ana.er, .vera in P.ragr.ph 14, th.t the
1ir.t .hipment .rrived .melly .nd atunk becauae the chicken. defro.tr.d
on the w.y to nefend.nt'. pl.ce of bu.ine.. or vere not frozen .hen ....
received .nd vere denied, .nd therefore no p.yment v.. due on ".y 2,
1994, likevi.e, the next .hipment .1.0 .rrived ..elly end .tunk for the
, , .
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. ,
.... r...on., .nd ther.tor., p.ym.nt v.. not due on n.y 16, 1994, .nd
th.t the third .hipment al.o arrived .m.lly and stunk, and th.r.tore
p.ym.nt vas not due on July 24, 1994, or .t .ny oth.r time.
The Answ.r :further av.rs that att.r the first shipment,
D.f.ndant vas promised chickens that vould b. properly shipp.d, and, in
point ot tact, were not. Further, Detendant avers that Plaintitt had
the nerve to re-ship, in nay ot 1994, part ot the original order that
had arriv.d April 22, 1994. D.tendant avers that it returned the
original order, atter discussing the matt.r vith Plaintitt, but noted
that Plaintift simply re-shipped part of that original order with th.
s.cond shipment.
.
III. AROUnENT
PLAINTIFF IS DUE NO MONIES.
Und.r the tacts asserted, no one should expect Det.ndant to
pay tor ~hipm.nts that arrive sm.lly and stunk, by virtue of having been
d.trosted on the way to Det.ndant's place at business, and which "er.
not frozen vh.n sam. arrived. It r.ally takes no recital of the la" to
understand that.
Under the Unitorm Commercial
Cod.
for
and th. common la",
chickens t.hat. arrived
Plaint.itf c.nnot torclI Det.ndant. t.o pay
s.elly, d.tro.t.d, etc.
In S.ction 23141a) of the Unitorm Commercial Code, 13 Pa.
C.S.A. 2314Ia), it states t.hat a warrant.y that goods shall be
..rchantabl. i. implilld in a contract it t.he ..ller is a m.rchant. "ith
r..peet to goods at that kind. Without qu.stion, that. applies in this
0....
,
..
. .
. , .
. .
In Altronics ot Bethlehem Inc. v. Repco Inc., 957 F. 2d 1102,
the Third Circuit Court ot Appeal. held that where good. are below
coaaercial .tandard. or are untit tor buyer.' purpo.e., the buyer. are
protected under Penn.ylvania law.
IV. QUESTIONS OF LAW
The only real que.tion ot law will be the juri.dictional i..ue
that will not be decided at the trial, and would only become relevant it
a verdict were to be rendered in tavor ot Plaintitt and again.t
Oelendant. Otherwi.e, Delendant believes that the only question i. the
credibility of the witne.. to be pre.ented by Delendant, a. to what
happened.
.
V. . WITNESSES
At this time, Oetendant anticipate. preaenting Howard
Flei.hman, it. Vice-Pre.ident, to te.tity about the .hipment. received
from Oe~endant by Pl.intill.
VI. CONCLUSION
The claim or claims ot Plaintitl should be dismissed, and
judgMent rendered in tavor ot Oetendant - - under the evid"nce to be
pre.ented by Delendant.
Re.pectlully .ubmitted,
Bya
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..
III. LeplIRueI
Since Flclahman ordered, received, and accepted the chicken, the only leaalluue
in this matter appears to be whether Fleishman owes Phoenix payment for the chicken.
IV. Wltnellel
Phoenix will call George Oppenheimer, General Manager of Phoenix Poultry, U
ita witness. Phoenix will also cross-examine Howard Fleishman, Fleishman's
representative.
V. Exhibits
Phoenix will introduce the order forms for each of Fleishman's orders and the
shipping slips for each order. These documents were attached to the Complaint u
Exhibits.
VII. Settlement Neaotlatlonl
Fleishman bu made no offer of any amount to try to settle this matter.
Respectfully submitted,
Hetrick, Zaleski & Pierce, P.C.
//0'
By:~~{ .
Anthony J. N tico, Esquire
Supreme un 1.0. IS8868
P.O. Box 126S
Harrisburl. PA 17108.126S
(717) 236.9S81
Attorneys for Plaintiff
Date: December 21, 199'
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PHOENIX POULTRY CORPORATION,: IN THE COURT OF COMMON PLEAS
OF CUMBERlAND COUNTY,
Plaintiff PENNSYLVANIA
NO. 6388 CIVIL 1994
v.
JACOB FLEISHMAN & SONS, INC.,
Defendant
AF(I'IDAVIT OF GEORGE OPPENHEIMf;R
I, GEORGE OPPENHEIMER, hereby testify and aver that the following facts
are true and correct to the best of my knowledge:
1. I had many telephone convenations with representatives of Jacob
Fleishman & Sons regarding the ordering, transporting, and selling of poultry.
2. I had telephone conversations with representatives of Jacob Fleishman &
Sons on April 11th, 13th, 14th, 18th, 19th, 1994.
3. On April 20, 1994, Fleishman placed an order with Phoenix for 868 cases
of free range chicken parts.
4. I had telephone convenations with iepresentatives of Jacob Fleishman &
Sons on April 22nd, 25th, 26th, 28th, 29th, 1994.
5. On May 2, 1994, I had a telephone convenation with representatives of
Jacob Fleishman & Sons.
6. On May 3, 1994, Fleishman placed an order with Phoenix for 450 cues of
free range chicken parts.
7. 1 had telephone conversations with representatives of Jacob Fleishman &
Som on May 4th, 5th, 11th, 13th, 16th, 17th, 20th, 23rd, 24th, 1994.
8.
I had telephone conversations with representatives of Jacob Fleishman &
.,' .
-
."
Sons on June 13th. 14th, 17tb, 20th, 22nd, 24tb, 29th, 3Otb, 1994.
9. I had telephone convenations witb representatives of Jacob Fleishman &.
Sonl on July 5tb, 6th, 7th, 1994.
10. On July 12, 1994, Howard Fleishman placed an order with Pboenix for
1150 cases of free range chicken parts.
11. I had telephone convenations with representatives of Jacob F1eisbman &.
Sons on July 14tb, 19tb, 20tb, 28tb, 1994.
12. I bad telepbone convenations witb representatives of Jacob Fleishman &.
Sons on August 2nd, 23rd, 31st, 1994.
13. The convenations centered on purchasing the poultry.
14. The convenations also centereJ upon Phoenix's current business witb
Jacob F1eilhmlln &. Sons and future business between the parties.
15. The convenations also addressed other types of products Jacob F1eisbman
&. Sons would be interested in purchasing.
SWORN TO AND SUBSCRIBED before
me by GEORGE OPPENHEIMER on
tbe n day of fi--h. , 1995.
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IN THE COURT 0. COHMON Pl.EAS
I
I CUHBE~LAND COUNTY, PENNSYLVANIA
I
I NO. &388 CIVIL 1994
I
I CIVIL ACTION - LAW
PHOENIX POULTRY CORPORATION,
Plaintiff
JACOB FLEISHKAN & SONS, INC.,
Defendant
PRELIKINARY OBJECTIONS
SUR I GSUE OR I RULE 102B (Bi ( 1 ~
AND NOW, COKES Defendant, Jacob Fleiohman & Sons, Inc., by
its attornvys, Handler and Wiener, to file the following Preliminary
Objection for lack of jurisdiction I
1. Defendant is a corporation organized and existing under
the laws of the State of Florida, with its business address at 1177 N.W.
81st Street, Miami, Florida 33150.
2. Defendant has no place of business or registered 011ice in
the Commonwealth of P&>nnsylvania and does not conduct any busine.s
within the Commonwealth 01 Pennsylvania.
3. Contrary to the averment in Paragraph 5 of the Complaint,
the orders were solicited by Plaintiff's agents in the State 01 Florida,
and there was no agreement between the parties as to where payment wa.
to be made.
WHEREFORE, Defendsnt requests that this court enter judgment
in favor of Defendant against Plaintiff, because tIlis court lacks
juriadiction over the person of Defendant.
HANDLER AND WIENE,R /JI
By I 1'~ /-J /1' ti:.-?~
~. Handler - (07190)
Attorney for Defendant
319 Ma\-ket SL . P.O. Box 1177
Harrisburg, Ps. 17108-1177
(717) 238-2000
VERIFICATION
The foregoing Preliminary Objection has been made subject to the
penaltie. of 18 Pa, C.S. Section 4904, relating to unsworn falsification
to authorities, and is true a~d correct to the best 01 the knowledge,
information and belief 01 the undersigned.
'/~ qf C"
-:?(',~dYL . / ~ J('(.
(Name nd Title)
for Defendant
Dated I Dl1>clPllber I i:L, 1!J94
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TO THE PROTHONOT..\RY. Of CDIBER1...\."D CO L':'l TY .
PI.UlI :tilth. witlun mmtter f\Jr :i'.. next:
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----------------------------------------------------------------------
CAP'TtON OF CASE
(.ntlrl ~.pllon mllll b. SI31.c!ln lull)
PHO!;NIX POULTRY CORPORATION
IPl:lllltil'f)
VI.
JACOB FLEISHMAN & SONS, INC.
(Cel.ndult)
VI.
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1. Sial. malter 10 bl Ul'lld (I. t.. pl'ii!ltlirs motion tor nl... mlll.
cilCllIduu's demwrll to .;om9WnI. Il~.):
1.1'
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lor ,lallltt!"C:
Address:
lor ~lllnd3ll1:
Address :
Anthony J. Nestico, Esq.
P.O. Sox 1265, Harrisburg,
Leslie B. Handler, Esq.
P.O. Box 1177, Harrisburg,
Pa. 17108-1265
Pa. 17108-1177
(b)
3. I WlllllOIUy ~ punts tn '~ntill, 'vr:lun tWO J3Y' :!m :his J:ISf n:lS ~..n
Ulltl1 lor vlum.lIt. _
4. Arlum.nt Court Date:
Call of Arlument L1st
April 19. 1995 ! ~"
Date: , ( I ! f1
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I "norllt,y for Defendant
Dalld: 2/20/95
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PHOENIX POULTRY CORPORATION,
Plaintiff
I IN THE COURT OF COMMON PLEAS
I
I CUMBERLANO COUNTY, PENNSYLVANIA
I
I NO. 94-6388 CIVIL
I
I CIVIL ACTION - LAW
v.
JACOB FLEISHMAN & SONS, INC.,
De1endant
DEFENDANT'S BRIEF IN SUPPORT
OF ITS PRELIMINARY OBJECTIONS
I. PROCEDURAL IIISTORY
Plainti11 1iled a Complllint in this court on or about Nove.,ber
8, 1994.
On or about December 27, 1994, De1endant reaponded with ita
Preliminary Objections 101' lack of jurisdiction.
II. ISSUE
DOES THIS COURT HAVE JURISDICTION
OVER THIS DEFENDANT IN TillS MATTER?
III. BACl<GROUND
Plaintif1, in its Complaint, avers that its bU.ine.. addre..
i. 70 Konhaus Road, Mltchanioaburg, Pa. 17055, and the Oetendant'.
bu.ineae addresa at 1777 N.W. 81at Street, Miemi, Florida 33150. The
Complaint further avere that Plainti:ff is a producer at tree range
chioken, and contends that this court has juriSdiction, a. order. were
plaoed with Plaintif1's offioes in Cumberland County, Penn.ylvania, and
also that payment .as due to be made in Cumberland County, Penn.ylvania.
The Complaint then goes on to aver that a claim in the amount
01 $25,082.20, ba.ed an an order at $11,187.20, per Exhibit A, which
pleading appears in Count I of the Complaintl bBS.d on an invoice at
$",095.00 attached BS Exhibit C, Bnd pleaded in Count II 01 the
Compl.int, ba.ed on an invoioe of $9,800.00 attached a. Exhibit E,
,
appearing in Count III at the Complaint.
In the tir.t Count, it bl
alleged that the Exhibit A order wa. received by Detendant on April 22,
1994, and in Court. II, it. i. elleged thet t.he Exhibit Corder wa.
received by Detendant. on Hay 6, 1994, end in Court III, it. i. averred
that t.he Detendant received the Exhibit E order on July 14, 1994.
Addit.ionally, in Count. III, it i. elleQed thet. Detendant. paid .o.eone
.50.00 to unload the order on July 14, 1994. Furt.her, in each Count, it
1. alleged that Detendant. ha. tailed and retu.ed to ~ake payment tor t.he
order.
To the toregoing Complaint., Detendant. ha. tiled the tollowing
Preliminary Object.ion. tor lack ot juri.dictionl
"1. Detendant. 1. e corporation organixed and exi.t1ng under
the law. at the Stat.e at Florida, wit.h it. bu.in... addre.. at 1177 N.W.
81.t Street, Hiami, Florida 33150.
"2. Detendant ha. no place ot bu.ine.. or regi.tered oftice
in the Commonwealth at Penn.ylvania and doe. not conduct any bu.ine..
within the Commonw.alth at Penn.ylvania.
"3. Contrary to t.he averment. in Paragraph :s at the COlllpl.int,
the order. were .olicited by Plaintift'. agent.. in the Stat.e ot Florida,
and there wa. no agreement between t.he partie. a. to where payment wa.
to be made."
IV. ARGUMENT
42 Pa. C.S.A. Seotion 5322 make. the exerci.e at juri.diction
over non-re.ident. co-exten.ive with the permi..ible limit. at the due
proce.. clau.e at the 14t.h Amendment. Beatrice Food. Co. v. Proctor and
Schwartz, 309 Pe. Super. 351, 455 A. 2d 646 Cl982).
To determine
whether the Detendant'. activitie. bring Defendant within the reach 01
Penn.ylvania's Long Arm Statute, the court. have evolved two .ucce..ive
te.t..
Koenig v. lnter~ional Bro. 01 DaileI' "eker., 284 Pe. Super.
558, 426 A. 2d 635 (1980). The lir.t. .t.ep ot t.he anely.i. i. to
, .
.ubject Detendant'. conduct t.o t.he te.t at Proct.or and Schwart.z v.
Cleveland Lumbllx' Co. , 228 PB. Super. 12, 323 A. 2d 11, 19 (1974) I
"FirBt, t.hll detendant. mu.t havII purposetully availed it.elt at
t.he privileQe at Bcting within the torum state, thue, invoking the
benetit. and protections at ite law.. Hanson v.Denckla. 3~7 U.S. 236,
253 (19~a). Secondly, the cause ot action mu.t Briee tram detendant'.
activities wit.hin the torum St.Bt.... See Southern tlach. Co.' v. tloha.co
Indus., Inc., 401 F. 2d 374 (6th Cir. 1968), Electric Regulator Carp. v.
St.erling Extruder Corp. 280 F. Supp. ~50 (D. Conn. 1968). La.tly, the
BCt.. at the dotendant. must hBve B substant.iBl enough connect.ion with t.he
torum .tate to mBke the exercise at jurisdiction over it rea.onable,
International Shoe Co. v. WBshington, 326, 316 (1945), see Southern
tlach. Co. v. tloha.co Indus., Inc., 401 F. 2d 374 (6th Cir. 1968)) ~
Flight Device. Corp. v. Van Dusen Air, Inc., 466 F. 2d 220 (6th Cir.
1972), and Kourkene v. American BF.lR, Inc. , 313 F. 2d 769 (9th Cir.
1963)."
The Detendant in the instant CBse is 10cBted in tliami,
Florida, Detendant has no place at business within the Commonwealth at
Pennsylvania, and has never undertaken Bny business or supplied any
services within the Commonwealth at PennsylvBnia.
In short, the cause
ot Botion does not Brise trom any activities at Detendant within the
Commonwealth at PennsylvBnia, Bnd therefore the Proctor test ha. not
been met.
It the stBndBrds set tox.th in Proctor are not sati.tied, the
court next inquires whether the non-resident Detendant's activitie. in
PennsylvBnia which are unrelated to the CBuse at Bction were "continuous
and sub.tantial."
Bark v. 111 1 ls" 458 PB. 228, 329 A. 2d 247 (1974),
The Aestatement at Confliot ot LBws, 2d 35 stBtesl
". .. a stBte hBe power to exeroi.e juri.diotion over an
individuBl who does bu.in..B in th. .tate with re.pect to cau.e. at
action that. do not. arise tram the businesa done in the st.ate, il thi~
business is BO continuous Bnd subetantial as to make it reasonable lor
the st.at.e to exercise suoh jurisdiction,"
. .
The Detendant in the above case does not pass the .econd
Proctor test because it has no activities in Pennsylvania which are
unrelated to the cause of action, which are .continuous snd
substantial.. Not unlike this Detendant, the court in Beatrice Food.
Co. v. Proctor aod Schwartz, 309 Pa. Super. 351, 45~ A. 2d 646 (1982)
was not concerned that the Defendant occasionally purchased .mall
business machines trom Pennsylvania Vendors and that it had in the pa.t
use Pennsylvania highways to transport material. In reality, Detendant
in the case at bar has not done as much as did the detendant in the
Proctor and Schwartz caS9.
The United Slates Supreme Court has stated that the concept ot
"minimum contacts. makes it essential that Detendants should be
protected against the burdens at litigating in distant Bnd inconvenient
forms. States, through their courts, should not reach beyond the limit.
imposed on them by their status ot cO-6qual sovereigns in a tederal
system. World-Wide VOlkswagen Corp. v. WOOdson, 444 U.S. 286, 100 S.Ct.
559, 62 L.Ed. 2d 490 (1980). It the court in Beatrice Foods Co. v.
Proctor and Schwartz concluded that even the occasional purchase. trom
Pennsylvania vendors and the use ot Pennsylvania highways to transport
.teel did not constitute business which is .continuous and sub.tantial, .
this court should have even less trouble in deCiding, in the ca.e at
bar, that the Proctor test is not satistied.
The allegation appearing in Paragraph 5 ot the Complaint that
.thia Honorable Court has jurisdiction over the matter a. the orders
were placed at the Phoenix's office in Cumberland County, Pennsylvania,.
r
. .
. ' . .
is simply not enough to sustain the jurisdiction of the oourt in this
matter. As avel'red in the Pr"l1minary Objections veri:f1ed by Defendant.
"Th" orders were solicited by Plaintiff's agents in thIP State o:f
Florida, and there was no agreement between the parties as to where
payment was to be made."
An isolated single transaction action will not be suffioilPnt.
See tlyel's v. tlooney Aircraft, 429 POiI. 127 (1967) and Alan Riohard
Textiles Ltd. v. Vertilux, Inc., 627 So. 2d 529. 530 (1993). where the
Florida court held that the act of ordering goods from a Florida
corporation was insufficient to establish minimum contacts. See alsol
Pay less Drug Stores Northwest, Inc. v. Innovative Clothing Exchange.
Inc. , 615 So. 2d 249 (1993).
In Venetian Salami, 554 So. 2d 499 (1989), at Page 503, the
Florida court said that it must assume that the debtor had .
responsibility to send payments for the goods to Florida where th.
creditor had ita principal place of business, but the fact that payment
was due in Florida is not a "sufficient minimum contaot" to austain
personal jurisdiction. The mere failure to pay money in Florida
standing alone will not suffice to sustain jurisdiction over a non-
resident defendant. In brief. if Florida would not Hssert jurisdiotion
in a case like the case at bar, certainly Pennsylvania also should not
not be asserting jurisdiction under the facts 01 the case at ber over a
Florida corporation.
V. CONCLlISION
D.t.ndant r.que.t. your Honorable Court to di.mi.. the clai.
at hand becau.. Detendant did not .vail it.elt ot the privil.g. ot
acting within th. Commonwealth, doll's not hav. sub.tantial bu.in...
contact. in P.nnsylvsnis, and ha. no unr.lated busin... to the c.u.. ot
action that would justity the juri.diction ot this court.
Al.o, ss .hown by th. Florida cs.e., Florids would not ....rt
I
':
jUl'i.diction ov.r the partie. it a Florids litigsnt wa. a..erting a
claim sgsinst s Penn.ylvania detendsnt under the tscts in the ca.e at
bal'.
Respecttully submitted,
HANDLER AND WIENER
/" )' /~ / /
BYI ,.---;;.<J(//, f-L.--- ,d-~
'L..li. B:' Handler ; C0719O)
Attorney tor Detendant
319 Market St. -Po O. BOlC 1177
HarriDburg, Pa. 17108-1177
C7 111 238 - 2000
Dst.d I February 9, 1995
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PHOENIX POULTRY CORP.,
Plaintiff
n.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACfION - LAW
JACOB FLEISHMAN & SONS,
INC.,
Defendant
94-6388 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECfION
TO PERSONAL JURISDICfION
BEFORE HOFFER. BAYLEY. AND HESS. J1,.
OPINION AND ORDER OF COURT
Defendant Jacob Fleishman & Sons, Ine., has raised preliminary objeetions challenging this
court's personal jurisdiction over it in a breach of contract suit. The plaintiff, Phoenix Poultry
Corporation, is a Mechanicsburg business which raises free range chickens' for slaughter and sale
on the wholesale and retail markets. The defendant is a business located in Miami, Florida. The
complaint alleges that between April and July, 1994, the defendant placed three orders with the
plaintiff and received from them some 2,500 cases of free range chicken parts with a value in excess
of$25,OOO.' The complaint further alleges the orders were placed at Phoenix's office in Cumberland
'Free range chickens arc raised without the use of antibiotics and other drugs commonly
used to raise most commercially produced chicken.
'Specifically. the individual transactions alleged by the plaintiff are as follows. On April
20, 1994, the defendant placed an order with plaintiff for 868 ea.ses of free range chicken parls
totaling St 1,187,20, The plaintiff shipped the order that day, and defendant received the order
on April 22. 1994. Payment was due on May 2, 1994. The second order was placed and shipped
on May 3. 1994. and consisted of 450 cases of parts worth $4.095.00. The defendant received the
shipment on May 6, 1994. and payment wa" due on May 16. 1994. The final order was placed by
defendant on July 12, 1994 and consisted of 1150 cases of parts worth $9.800.00. The order was
shipped the same day and received by the defendant on July 14, 1994. Payment was due no later
than July 24, 1994. (Complaint at paras. 9-15. 18-24. and 27.34)
94-631111 CIVIL TERM
County, Pennsylvania and payment was due in Pennsylvania. The plaintiff initiated this suit when
defendant failed to pay for any of the ehickcn. The defendant now argues that this court lacks
personal jurisdiction over its Florida-based corporation.
Challenges to personal jurisdiction arc properly brought in preliminary objections pursuant
to Pa.R.C.P. 102l1. In challcnges to personal jurisdiction, we consider the evidence in the light mOlt
favorable to the non-moving party, Dllrman v. Wilair Services. Inc., 404 Pa,Super. 136, S90 A.2d 317
(1991), and will sustain preliminary objections only in cases which arc clear and free from doubt.
Dclaware Valley Underwritinll v. Williams & Sapp. 3S9 Pa.Super. 3611, 373. SIll A.2d 12110, 1282
(1986). Pennsylvania's long-arm statute governs personal jurisdiction over non-resident and grants
"
Pennsylvania courts specific personal jurisdiction "to the fullest extent allowed under the Constitution
of the United States and may be based on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States." 42 Pa.C.S.A. S322(b). Minimum contact is
satisfied under the statute if the person transacts business in the Commonwealth through "a series
of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an
object." 42 Pa.C.S.A.(a)(l)
Personal jurisdiction by a state court will satisi}' the Due Process clause of the Fourteenth
Amendment if the defendant is (1) shown to have established minimum contacts with the forum state
such that (2) maintenance of the suit will not offend traditional notions of fair play or substantial
justice.' International Shoe Co, v. Washinllton. 326 U,S. 310 (194S). Once minimum contacts have
J A second, alternative test is used when plaintiff alleges minimum contacts through
"continuous and substantial" eontaclJl unrelated to plaintifrs cause of action. Burk v. Mills. 4S11
Pa, 228, .129 A.2d 247 (1974). The test is not applicable herc because plaintiff docs not allege
such oontaelQ. but rather that the cause of action arises directly out of defendant's contacts with
the Commonwealth.
2
"
94.6388 CIVIL TERM
been established, adjudication of a suit wilt not offcnd fair play notions if the defendant purposefully
avails itself of the privileges of conducting activities within the forum state such that it should
reasonably Ilnticipate being haled into court in that state. Hanson v. Denckla, 357 U.S. 235.
Cascs in which n contract is the basis for thc cause of action require special jurisdictional
consideratiuns to detcrmine whether minimum clJntacts With the forum state have been established
by the defendant. In Burier Kinfll v. Rudzewiez. 471 U.S. 462 (1985), the United States Supreme
Court considered the sufficiency of a cuntractual relatiunship with the forum state and observed the
following:
At the outset, we note a continued division among
lower courts respecting whether and to what extent a
contract can constitute a "contact" for purposes of due
process analysis. If the question is whether an
individual's contract with an uut-of-state party ~
can automatically establish sufficient minimum
contacts in the other party's home forum, we believe
the answer clearly is that it cannot. The Court long
agu rejected the notiun that personal jurisdiction
might turn on "mechanical" tests. . . . Instead, we
have emphasized the need for a "highly realistic"
approach that recognizes that a "contract" is
"ordinarily but an intermediate step serving to tie up
prior business negotiations with future consequences
which themselves are the real object of the business
transaction." It is these factors--prior neiotiations and
contemplated future consequences. aloni with the
terms of the contract and the parties' actual r.ourse of
dealinll--that must be evaluated in determinini
whether the defendant Duroosefullv establishes!
minimum contacts within the forum.
llI. at 478-79 (emphasis added).
Applying this standard to the instant malter, we find that defendant Fleishman & Sons had
sufficient minimum contacts with the Commonwealth to justify personal jurisdiction. This is not a
situation where a single contract is the basis fur jurisdiction. Rather, defendant placed three
3
94.6388 CIVIL TERM
separate orders with the plaintiff Mechanicaburg business. The plaintiff allegedly complied with the
orders and, in three separate shipments, sent approximately 2,SOO cases of chieken parts from
Mechaniesburg, Pennsylvania to defendant's place of business in Florida. There is no indieation in
the record that the defendant rejeeted or was dissatisfied with the product, indeed the last order in
the series was by far the largest. (~ll!W:i page I, note 2) The multiple orders also suppor.
plaintiffs allegations of the development of a continuing business relationship between the parties.
The defendant in R.J. Olender. Inc. v. Jonker. et al.. SO Buck.'l Co. L. Rep. 241 (1987), raised
the same jurisdictional objeetion in an analogous contractual situation. The plaintiff, a
Commonwealth business, contracted with the defendant, a homeowner in New Jersey, to evatuate
fire damage of the house in New Jersey. The plaintiff performed the services and filed suit when
defendant failed to pay under the contract. In granting personal jurisdiction over the out-of-state
defendant, the Honorable Leonard B. Sokolove concluded:
We find after careful review of the record in this
mailer that plaintiff has set forth a sufficient number
of [contacts) by the defendants with this
Commonwealth so as not to offend due process
requirements. The defendants knew that they were
dealing with a business located in Pennsylvania,
contacted the business by telephone on numerous
occasions regarding the work performance, and
allegedly re.fused to pay to the Pennsylvania business
the value of work performed by it.
lsI. at 244. Stt D.lA2 Commonwealth Capital Fundin~. Inc. v. Franklin Square H08p.. 423 Pa.Super.
149,620 A.2d I1S4 (1993); First Fidelity Bank v. Standard Machine & Equipment Co., 398 Pa.Super.
607, S81 A.2d 629 (1990).
Defendant Fleishman & Sons, lne. alleges in its preliminary objection that the orders we,e
4
94.6388 CIVIL TERM
solicited by ptaintiffs agents in Florida and that no agreement was reached on where payment was
to be made. This controverts the allegation in plaintiffs complaint that the orders were made. and
payment was due, in Pennsylvania. When an issue of fact is raised, "the court shall cOll5ider evidence
by deposition or otherwise" punuant to Pa.R.C.P. 1028(c)(2) governing preliminary objectiuns. ~
Sluta v. Moorinp. Ltd., 343 Pa.Super. 96,494 A.2d I (198S) (finding affidavits acceptable under this
rule). Plaintiff has filed an affidavit uf Phoenix's General Manager. Geurge Oppenheimer, which
avers that he had approximately forty phone calls with representatives of the defendant regarding
the ordering, transporting, and selling of poultry. (Affidavit at para. 1) While the phone calls do
not determine whether a solicitation was made in Florida, we conclude that they do evidence the
likelihood that the defendant knew the plaintiff was a Pennsylvania corporation. Additionally, all
three invoice orders contain plaintiffs Mechanicsburg address. Thus, even if solicitatioll5 were made
in Florida (althuugh no evidence supports this allegation), the defendant's knowledge of plaintiffs
Pennsylvania !ucation is significant when cunsidering whether minimum contacts have been
established. ~ R.J. Olender, SO Bucks Cu. L. Rep. at 244.
Defendant Fleishman & Sons further argues Wl' should not assert personal jurisdiction
because Florida law suggests that Florida would nut assert jurisdiction over a Pennsylvania defendant
under the same circumstances. We. initially, nute the obvious in stating that we are not bound by
Florida law. Nevertheless. we address the cited Florida case of Venetian Salami Co. v. Parthenais,
SS4 50.21.1 499 (Fla. 1989). Therein. the Florida Supreme Court considered whether a breach of
contract suit for failure of an out-of-state corporate defendant to pay a Florida business for services
performed wa.\ sufficient to assert juri,diction. Although the court remanded for an evidentiary
hearing. it noted that "we do not believe that the mere failure to pay money in Florida, standing
alone, would suffice to obtain jurisdiction," III at S03. The court ell'plained its rationale by way of
S
,. .
94.6388 CIVIL TERM
ORDER
AND NOW, this
11.-
day of May, 1995, the defendant's preliminary objection to
penonat jurisdiction is DENIED.
BY THE COURT,
l.inus E. Fenicle, Esquire
For the Plaintiff
-A./~
Leslie B. Handler, Esquire
For the Defendant
:rlm
7
'. ~ . .
.
PHOENIX POULTRY CORPORATION, I IN THE COURT OF COtltlON PLEAS
Plaintitt I
I CUtlBERLAND COUNTY, PENNSYLVANIA
v. I
I NO. 6386 CIVIL 1994
JACOB FLEISHtlAN & SONS, INC. , I
Dltfendant I CIVIL ACTION - LAW
ANSWER TO COtlPLAINT
AND NOW, COMES Jacob FlttishlRlBlI & Sons, Inc., Oefendant, by it.
attorney, HANDLER AND WIENER, vizl
1. Paragraphs 1 to 4 admitted.
5. Denied. It is denied that this Honorabllt Court h..
juri.diction over this matter. However, Defendant aoknowlltdglt. that at
the prltsent time it is bound by a Ruling of this Court a. to
juri.diction, hereby resltrving the right to contest the juri.diction if
therlt .hould be any appeal proceedings.
6. Denied. Although Oefltndant, blttween April and July, 1994,
order.d free range chicken produc.d by Plaintiff, it is d.niltd that .am.
had a valu. of $25,082.20 a. discuss.d bltlow.
7. Paragraphs 1 to 6 are incorporat.d herltin by rltferltnc..
8-13. Paragraph. 8 to 13 are admitt.d.
14. Paragraph 14 is dltnied. Although th. t.rms of the ord.r
called for payment within ten (10) days of rltc.ipt of thlt ordltr, th.
shipmltnt arrived smelly and stunk bltcause th. chickens d.fro.t.d on th.
way to Defendant's place of busin.ss and wer. not frozltn "hltn .am.
arrived.
15. Paragraph 15 is deniltd. Because ot the condition of th.
chicken. whltn .amlt arrivltd, paymltnt "a. not du. on tlay 2, 1994, or at
any oth.r timlt.
16. Paragraph 16 is admittltd. Further, thlt r.ason for th.
rttlu.al to pay is bttcau.tt D.lttndant could not u.tt sm.lly and stinky
Chicken. that had been dttlrostltd ttith.r when shipp.d or during shipm.nt.
17.
r.lerttnctt.
Paragraphs 1 through 16 are incorporatttd httrein by
18. Paragraph 18 18 tt)Cprlt.sly admitt.d with th. qualification
that Ho"ard Fl.i.hlllan wa. prollli.ttd chick.ns that would b. prap.rly
.hippttd.
19-22. Paragraph. 19 through 22 ar. admittttd.
..
23. Paragraph 23 1u denied. Although the terms of the order
celled for payment within ten (10) day. of receipt of the order, the
shipment arrived smelly end stunk becBuse the chickens detrosted on the
WBY to OIPfendBnt' s place of bus1nIPss Bnd wIPrIP not frozen when sallie
arrivIPd.
24. ParagrBph 24 is denied. BecausIP of the condition of the
chickens whIPn SBme arr1vIPd, payment was not due on May 16, 1994, or et
Bny othlPr time.
25. PBrBgrBph 25 is Bdmitted. Further, the reason tor the
refusal to pay i. because Oetendant could not use smelly Bnd stinky
chickens thBt hBd been defrosted either when shipped or during shipment.
Further, P1B1nt1ff had the nervIP to re.hip part of the orig1nel order
thBt had Brrived April 22, 1994, again. Thi. occurred becBuse Oefendent
hBd shipped the order back, after discussing the mBtter with P1Bintitf.
26.
reference.
Paragraphs 1 through 25 are 1ncorporiltll'd herein by
27-32.
ParagrBph. 27 through 32 are admitted.
33. Paragraph 33 is denied. Although the terms of the order
cBlled for payment within ten (10) days of rIPceipt of the order, this
shipment also arrivIPd smelly and stunk, dIPspite the promises of
P1Bint1ff to the contrary, because again the chickens detrosted on the
way to OefendBnt' s place of business and were not frozen when the
shipment arrived.
34. Paragraph 34 is denied. Because ot the condition of the
chickens when same arrived, payment was not due on July 24, 1994, or Bt
Bny other time.
35. Paragraph 35 is admitted. Further, the reason for the
refusal to pay is because Defendant could not use smelly Bnd stinky
chickens thBt had beIPn defrosted IP1ther when shipped or during shipment.
WHEREFORE, Defendant respectfully requests that this Honorable
Court dismiss this suit, and Bward Oetendant such rel1et as it may be
entitled to receive by lBw.
::~DZ Zi/f' I.~
tesl1e B. Handler- (07190)
Attorney tor Defendant
319 Market St. - P.O. 80x 1177
Harrisburg, PB. 17108-1117
(717) 238-2000
..
. .
VERIFICATION
I, HOWARD FLEISHlIAN, President. at Jacob Fleishman & Sons,
Inc., do hereby verity t.hat. t.he averment.a cont.ained in t.he toregoing
Answer are t.rue and correct. t.o t.he best. of my knowledge, intormat.ion and
belief. I underat.and t.hat. any fal.e .t.at.ement.. made herein are subject.
t.o t.he penaltie. of 18 Pa. C. S. Sect.ion 4904 relat.ing t.o unsworn
falsificat.ion t.o aut.horit.ie..
.J~ ~,._~
~oward Fleishman
Dat.ed. June 7, 1995
.,
I. INSTRUCTIONS
The following terms have the designated meanings when used herein:
A. The term "identify" shall have the following meanings:
1. When referring to a penon or penons, the term shall mean a statement
of the current name, address of residence, business address, telephone number, present
or last known employer, official titles held, job description. and nature of affillation with
any party to this litigation with respect to each penon about whom information is lOuaht.
2. When used with respect to an action (including any omission,
communication, occurrence, statement, or conduct, all of which shall be collectively
referred to in this paragraph as the "action"), the term refers to a description of the
substance of the events constituting the action, a statement of the date on which the
action occurred, the identification of each and every penon participatinl in the action,
the identification of all other penons present when the action occurred, a statement as
to whether minutes, notes, memoranda, or other records exist with respect to the action,
and identification of the penon or penons presently having possession, custody, or
control of such documents.
3. When used with respect to a document, the term refen to the proviaion
of the following information:
(a) The date of the document;
(b) The title of the document;
(c) Any identifyinl number on the document;
(d) Any identifying desipation for the document;
-2.
.,
(e) A description of the document;
(f) The subject matter of the document;
(I) The name, title, address, and telephone number of each
person who wrote, signed, prepared, dictated, participated in
preparation of, created, initialed, or otherwise had any
function respecting preparation of the document or review of
the document;
(h) The name, title, address, and telephone number of each
addressee on the document, as well as the same for each
person receiving a copy of the document;
(i) The present location of the document and the name and
address of the custodian of the document;
(j) If a document is not an original, the location, name, and
address of the custodian of the original; and
(k) Any ether designation necessary to identify the document for
purpose~ of obtaining a copy thereof.
B. The term "documents," when used herein, shall mean all written, typed,
printed, recorded, or graphic matter of every type and description, however and by
whomever prepared, produced, reproduced, disseminated, or made, in any form, now or
formerly In the possession, custody, or control of the party to whom these Interrolatorie.
are addressed, its officers, agents, employees, and attorneys, or any of them, includin.,
but not limited to letters. correspondence. telelrams, memoranda, records, minute. of aU
.3.
'.
types of meetings, contracts, subcontracts, agreements, intra and interoffice
communications, purchsse orders, requisitions, plans, studies, summaries, ana1yael, results
of investigations, reviews, bulletins, proposals, estimates, appraisals, recommendatioOl,
critiques, trip reports, engineering calculations, bills of materials, drawings, uetcbel,
blueprints, charts, indices, notices, diaries, books, desk calendars, appointment books,
meuages, instruction3, work lIIIIIignments, notes, notebooks, tape recordings, partial or
complete reports of telephone conversations, pbotograpbs, slides, public statements,
newspaper or otber media releases, public aod governmental filings, opinions, and any
other writings, drawings or recordings. If any document was, but is no longer, in the
posseuion of tbe party to whom these Interrogatories is addressed or subject to sucb
party's control, identify the documen~.
C. When used herein, the term "person" sball mean any individual, partnenhip,
joint venture, firm, lIIIIIociation, corporation or busineu, or any governmental or legal
entity.
D. When used herein, the term "communication" sball mean any and all
transmissions of information, the information transmitted, the proceu by which the
information is transmitted, and the term shall expreuly be inclusive of all written and
oral communications.
E. When used herein, the terms "relate to," "relating to," or "in relation to," Ibatl
mean constituting, reflecting, representing, supporting, contradicting, refening to, 1tatioa,
describing, recording, noting, embodying, containing, mentioning, studying, analyzlna,
discuuin., evaluating, or relevant to. As indicated, tbe term neceuldly includel
.4.
~.,
..
lnformatfon which ia in oppoaition to u well u in aupport of the poaition(a) and claim(l)
of the party to whom the lnterroaatoriea are addreued.
F. When used herein, the term "reflect" shallulean embody, contain. record,
note, refer to, relate to, describe, be relevant to, state, or mention.
G. When used herein, the term "Plaintiff' shall refer to Phoenix Poultry
Corporation. Plaintiff herein.
H. When used herein, the term "Defendant" ahall refer to Jacob f1eilbman Ie
SoUl, Inc., Defendant herein.
.5.
.,
n. General In.tructlon.
A. Whenever an interrogatory is framed in the conjunctive, it .hall aIao be taken
in the disjunctive and vice vena.
B. Whenever an interrogatory is framed in the singular. it shall be taken in the
plural and vice vena.
C. The use of any tense of any verb sball be considered also to include within ita
meaning all other tenses of the verb so used.
D. All documents produced sball be segregated and identified by the parqraphs
to wbicb they are primarily responsive. Where required by a particular parqraph of
these InterrQgatories, documents produced shall be further segregated and identified II
indicated in tbat paragrapb. For any documents wbich are stored or maintained in files
in tbe normal coune of business, such documents shall be produced in such files or in
sucb a manner as to preserve and identify the file from which such documents were
taken.
E. If you object to any interrogatory on the grounds that the attorney-client,
attorney work product, or any other privilege is applicable thereto, you sball, with respect
to that interrogatory:
(1) Provide sufficient information concerning tbe answer and the
circumstances thereof to explain the claim of privilege and to permit
the adjudication of the propriety of that claim.
F. All responses produced in response to these Interrogatories shall be produced
ill l2J.lZ, notwithstanding tbe fact tbat portions tbereof may contain information not
.6-
requelted. Any documents shall include interim u well u final editions of a document
and shall include all editions or copiel of a document which Ire not identical to (whether
due to handwritten notations, or revisions, or otherwise) the ori,inal or other produced
copy of a document. Additional pales can be used if a complete Answer requires more
lpaee than that provided herein.
G. These Interrolatoriesshall be deemed to be continuin,lO u to require a
lupplemental answer by tbe penon to whom they are directed, or such penon'l lIenll,
employeel, representatives, or attorneys if such penon(s) obtain any information relevant
to these Interrosatories between the time of response hereto and the trial of thia cue.
'"I,'"
.7.
..
01, 'NTEpOGATOIlES
1. State the name of every Individual responsible for providlnl aDswen to
these Interrosatories.
tk)ward Fleistman
2. State whether you ever complained to C &C TruckinB, Inc. that the
chicken shipped from Phoenix Poultry Corporation had defrosted on the way to
Defendant's place of business and was not frozen when same arrived, as set forth In
your answer to Paragraph 14 of the Plaintiffs Complaint.
Yes.
-t.
..
3. If the answer to the preceding interrolatory illn the affirmative, state
whether any of the complaints were made in writlnl. If so, Identify the dale of the
writlnl, the Individual to whom the writing was addressed, and who currently maintains a
ropy of the wrltllll'
Yes. The receiving record fran the cold storage states the condition of the
product received. The driver fron C&C takes a copy of the receiving
record for his coopany I s records.
4. State whether you ever complained to Phoenix Poultry Corporation that
the cbicken ordered arrived in an unac:c:eptable condition.
Cftlled imnediately and spoke to Mr. Oppenheimer. telling him of
the bad condition of the product.
.f.
.'
7. With regard to Paragraph 18 of your Answer, state to whom Mr. f1eilbmaa
complained that the chicken wu not properly shipped and who at Phoenix PoultJy
Corporstion promised that the chicken would be properly shipped.
Mr. Oppenheimer
8. With regard to Paragraph 25 of your Answer, identify the trucking
company through which the Defendant shipped the order back to Phoenix Poultry
Corporation. Identify any bills of lading or other documents evidencing the shipment.
C&C Trucking CCl11e back to our warehouse to piCk up the
bad poultry we received.
.~ifi{ il
rl;slie B. HaiKl r - (07 9 1-
Attorney for Defendant
HANDLER NlD WIENER
319 Market St.-P.O.Box 1177
Harrisburg, Pa, 17108-1177
(717) 238-2000
HETRICK, ZALESKI &. PIERCE, P.C.
10 S. Market Square, Suite 500
P.O. Boll 126.5
Harrisbur.. PA 17108-12~
(717) 236-9.581
-11-
.'
PHOENIX POULTRY
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL V ANJA
Plaintiff
v.
NO. 6388 CIVIL 1994
JACOB FLEISHMAN &. SONS, INC.,
CIVIL AcrJON
Defendant
CJ!RTlFlCATE OF SERVICE
I, ANTHONY J. NESTlCO, bereby certify that on the 11th day of Aupat, 199',
a true and correct copy of tbe foregolnglnterrogatoriea of Plaintiff Directed to
De&ndant, Jacob Fleishman &. Sons, Inc., was sent by flnt clua mall, poataae prepaid, to
the foUowing:
lealie B. Handler, Esquire
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108-1177
.. . . .
P~IX POOLTRY CXlRPORATIOO,
Plaintiff
v,
I IN THE CXXJRT OF ~ PLEAS
I
I ClJolBERLAND CXXJNl"i, PENEYLVANIA
I
I NO. 94-6388 CIVIL
I
I CIVIL ACTION - LAW
JACOB FLEISlM\N & SCN>, INC"
Defendant
VERIFICATION
The foreg:>ing Answers to IntelTogatories have been Il1!Ide subject to the
penalties of 18 Pa. C.S. Section 4904, relating to unswrn falsification to
authorities, a!XI is true and correct to the best of the knowledge, information and
belief of the Wldersigned, a coxporate officer of Defendant, Jacob Fleishnan & Sons,
Inc,
~ ~t..J(~#FeL"'-'
Fleishnan, Vice-President
Dated: October }J, 1995
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11/fl/15 TUI 01:13 FAX T1T 1.0 1573
CUK8 CO PROTHONOTARY
PRAECIPE fOR LISTING CAS. PO. TRIAL
(folIet' be typ.wr!tten and autmitt.ci in c1l.lpl.f.c:ate)
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'ro 'DIE PIDnQIJI'ARY or CIHlERl..AN> COONrY
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the next tem e~ c!ViQourt,
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Please lilt the following case.
(ChecIc one)
for JURY trial at
( X
for trial witoout Il jury,
-----------------------------------------
CAPrION OF CASE
I~tire C!lption lIllSt be steted in full)
I check one)
IX) Civil Action - law
~~l from Arllitratioo
Phoenix Poultry Corporetion
( )
~othlr)
(Ne1ntiff)
V8.
Jacob Fleiahman & Sons, Inc.
The triall1st will be c"lled onDecembar 19, 1995
and
( Def.nclant )
Triall ccrrmence on Januerv 16. 1996
Pretrials will be held on Dacamber 2.1 " 1995
(Briafl are dlJe 5 dllyB before pretr14ls. r
(The party lilting this eale for tr1eJ. IIhall
pxmricle forthwith Il oopy of tblt praecipe to
ell couns.l, pursuant to local Rule 214.1,)
VS.
No. 6388
Civil Action - Law
19 94
Indicate the attorney Who will try case for the party who fU.s this praec:!pe.
Anthony J. Nestieo
Indicate trial counsel for otbltr parties if known. Leslie 8. Handlor
TtUI cue i8 nedy for trial.
Signed.
PJ: int NlsTe I
Nestico, Esquire
Dat..
November 21, 1995
Attorney for.
Plaintiff
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'11. Madl" 'L
,
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C & C TRUCKING, INC.
po, Box 534' Brookvlaw Road
STATESVILLE, NC 28677-0534
Telephone 704/672,9918
NO: 66317
la9/Gl1/94
FB DATE lail2G1/94
B OF L DATE NET 3G1
TERMS
SHIPPER
WELLINGTON FARKS
78 KONHAUS ROAD
KECHANICSBURG PA 17055
CONSIGNEE
THOKAS HOWARD NEWTONNC
c~t~~~~~DK~~L~~~I~~--~A ~t. i!.~ tJ .jJ
JACUH FL "IA~~ Vv
3
1 T/L ORGANIC CHICKENS
STOP OFr CHARGE
1462
35Gl0Gl
1. 21
4Gl.G10
1769,lt:2
12e.G1e
1889..2
TOTAL DUE ..
B
I
L
L
T
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WELLINGTON rAR"S
7G1 KONHAUS ROAD
WELLFA
PREPAID
RECEIVED IN GOOD CONDITION
EXCEPT AS NOTED
FIRM
"ECHANICSBURO PA
17055
REC BY
ORIGINAL
DATE
,
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FARM' (717) 6Gl.3377
FAX' (717) 790.048e
MAKE INVOICE PAYMENT TO:
PHOENIX ~LTRY CORPORATION
Dall: , ,I ';,' ,_I . ,
~1&'2..lut 9';uYllJ
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i
ORDER NO.
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"
70 KONHAUS ROAD
MECHANICSBURG. PA 17055
~', "
Order Placed By:
Name
I..~ ..'
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Telephone No,
\.
AddrellS -
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J
~__ StalG _____ Zlp-
QUANTITY
ITEM DESCRIPTION
I.BU' K I
HRAY RACK
WEIGHT
'.
TOTAL
CHICKEN BROILER SHELLS 3.3Ya LBS.
CHICKEN FRYERS WHOLE
WHOLE ROASTER CHICKENS 4'1l-eYa LBS.
CHICKEN BREAST. BONELESS. SKINLESS
HI R T. E W KIN
CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT
CHICKEN LEGS. REGULAR,
CHICKEN LEGS. QUARTERS
CHICKEN DRUMSTICKS
CHICKEN THIGHS 0
CHICKEN THIGHS. BONELESS, SKINLESS
CHICKEN WINGS
CHICKEN WING DRUMMEnES
CHICKEN BUFFALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
CHICKEN SAUSAGE. HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE - BREAKFAST
CHICKEN SAUSAGE. PLAIN (MILD ITALI~
WHOLE YOUNG TURKEY
WHOLE TURKEY BREAST
TURKEY BREAST BONELE,SS W/SKIN NET
---------~
---------------.--------
---- -.--.--------.-..-...-.-...........----..--..-----.-....-....-------
_._--_._~ ..--.---.-......---..
----~--_.- ---
_._.-_..._-~.-,-----_.._- ,.------. ..-.....--.......-..--....--.- ---
TOTAL CASES
. SHIPPING INSTRUCTIONS.
Il
~,~, ?; 'LM/"~
Cr' ;'0 ttl
PlAINTIFF'S
EXHIBIT
./ Ij/I,. I
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lilLI, O~ I.AIlINO . WH.UNGTON'$ COPY
/
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FARM. (717)691.3377
FAX'(717)7~89
MAKE INVOICE PAYMENT TO:
PHOENIX POULTRY CORPORATION
cy~' ~,%/ cr
jpr*j./~?lfit ..7rl~YIIJ
ORDER NO.
"1
,;~
OOle:_2-.
.
70 KONHAUS ROAD
MECHANICSBURG. PA 17055
'/1 '
Order Placed By: __
Nwne .--!....~~_
. Telephono No, --.:.~
~.
Address ..____.. ~-_.
..._.....__.__.___....____._.__u...._.__ SIBle ------- Zip __..--_~_-_.
. '
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QUANTITY
ITEM DESCRIPTION
B.BULK
HRAY RACK
WEIGHT
--l
CHICKEN BROILER SHELLS 3-3\1 LBS.
CHICKEN FRYERS (WHOLE) .___.___um _.
WHOLE ROASTER CHICKENS 4\1.611 LBS.
CHICKEN BREAST . BONELESSd.KINLJ_~L.__
CHICKEN BREAST. BONELESS, W/SKIN.
CHICKEN BREAS"!.- WHOLE
CHICKEN BRIi:AST . SPLIT
CHICKEN LEGS . REGUL~R
CHICKEN LEGS. QUARTERS
C . N DRUMSTICKS
cHIC EN THIGHS
..---.---.-.-
CHICKEN THIGHS - BONELESS, SKINLESS
CHICKEN WINGS
. -
CHICKEN WING DRUMMETTES
CHICKEN BUFFALO WINC!.~._u.u.. _ ..___
CHICKEN N.EC~.L____. Un__'_'
CHICKEN BACKS
CHICKEN LIVERS
._~___.____'__n_
CHICKEN SAUSAGE. HOT & SPICY
CHICKEN SAUSAGE. CHEESE & PARSLEY
-~-._--
CHICKEN SAUSAGE. BREAKFAST
CtIlCKI!H SAUSAGE :..I.'.!"AIN lMILDJ!~I~~L
WHOLE YOUNG TURKEY
._~_. _uo_ ... ... ._____,__,_ __
______. WHOLE TURKEY BREAST
._u_. ._... .TII.RKEY BREA~T.B..9.N_ELES~ W/S~IN,.~J!__..
-..
.......
-....
. .
+..~ ... --T"~-- ~.... _.
...--+-. -. ...-._~..._'
"
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TOTAL CASES
. SHIPPING INSTRUCTIONS.
TOTAL ..
"oA,!
7<., CO ~'" ~ y y)' ('(oj (J
('. I:f,,(~', /1
1l1l.!, Of t,\UIN(; . WU.uNGr~; :~:/I
KLLM, INC.
p~MQT.TcaOX
CHARLOTTe
__ 352239
90S318
He
28290-5318
JACOB FLEISHMAN & SONS
1117 PI W 81 S T S T
~
CUN',lIiNl:1.: lJl:'l"NAlIIIN
MECHAHICS~URG PA 1105~
MUMI FL H010
NOTICf,: ICC REGULATIONS flEOUIRE All ,REIGHT INVOICES Bf PAID WIIHIN I UUfHUN [JAYS Of INVOIC~ DA If
~<l MI
Hit I 1)1 l AIJIN(, NUMIlE.n~
t<.ll M rr~IP NIJMIH Ii
WELLIHGTON FARMS
10 KONHAUS RD
003638
U~545
0358402
MECHANICS~URG PA 17055
"i 5/03/91t 1800
.. , , I)/06/91t 1631t
IJAlt IIMI:
1 POULTRY FROlEN
40000
1.100.00
STOPOFFS
SOUTHERN FOODS
HARRY FARMS MARKET
ilUCK HEAD MEAT
S/O GREENSbORO N
S/O ROSWELL GA
5/0 ATLANTA GA
PlAMIPI
ElHM
..,
<.:><..
KLLlldNC . PO .OUIl..
JACK !ION. MIl, _._
TFUPHONRlecJl, ~2Sol5
"1-111 ill'lAI
19 100.00
PlEA::)E PA ( I~( fill:; I~i'/' )11.1
A,~NO ':irATE MHF Wit L 1'1 )11' JW
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FARM. (717)691-3377
FAX'(717)790~69
MAKE INVOICE PAYMENT TO:
PHOENIX POULTRY CORPORATION
ORDER NO.
17
. . ~.)I." ~ ' '" :' I.,,,
Oale, . _-------.'
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Order Placed B~: ~~
Name Ii. ,;
Address ~,
QUANTITY
TOTAL CASES
,.
70 KONHAUS ROAD
MECHANICSBURG, PA 17055
Telephone N~, ~
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____,.____.___~_._._._.____ Slale .-------- Zip .-.-...-.',--~--
"lJ
ITEM DESCRIPTION
CHICKEN BROILER SHELLS 3.3'1a LBS.
CHICKEN FRYERS (WHOLE)
WHOLE ROASTER CHICKENS 4'1a-6Y, LBS.
CHICKEN BREAST. BONELESS. SKINLESS .,
N RE . BONELESS. W~tL______
CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT ~
CHICKEN LEGS. REGULAR
CHICKEN LEGS. QUARTERS
CHICKEN DRUMSTICKS - ,
CHICKEN THIGHS -41I-l.!-
CH!CKEN THIGHS. BONELESS, SKINLESS
CIUCKEN WINGS
CHICKEN WING DRUMMETTES
CHICKEN BUFFALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
C_HICKEN SAUSAGE. HOT" SPICY
CHICKEN SAUSAGE. CHEESE" PARSLEY
CHICKEN SAUSAGE. BREAKFAST
CHICKEN SAUSAGE. PLAIN (MILl) ITALIAN)
WHOLE YOUNG TURKEY
WHOLE TURKEY BREAST
TURKEY BREAST BONELESS.!t/SKIN,.NET
B
T-TAAY RACK
WEIGHT
. I I ~
, ,
. SHIPPING INSTRUCTIONS.
TOTAL .
J J/Y/
!~ /
Y ~/?(
, ,
BILL Of L,\OING - Wfl,L1NGTON'S COPY
,...,
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.. ......_,.....-.._-.....~,..
_"...~j:;OROAN1CS, INC.
~
06-23-1&&4 l!llS
""4 6710214
'011 ACCOUN' 0':
IICINlD IN 1000 OIIDII 'ROM
I.,blbll!pua &_m.,:Jau.
~ILHDIN1'14
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o DELIVER TO:
tu.lII'I11 t'n -/tt; /If j
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C & C TRUCKING, INC.
PO Box 534 Brookvlew Road
STATESVILLE, NC 28677-0534
Telephone 704/872.9918
NO: 64941
87/28/94
FB DATE 87112194
B OF L DATE NET 38
TERMS
SHIPPER
WELLINGTON 'ARNS
7. KONHAUS ROAD
NECHANICSBURG PA 17.~~
CONSIGNEE
J FLEISHKAN KIANI FL
THOKAS HOWARD NEWTON NC
TALLEYS CHARLOTTE NC
EARTH FARE ASHEVILLE NC
1 TIL CHICKENS TO KIANI , PTS
DEL TO NEWTON NC
DEL TO CHARLOTTE NC
DEL TO ASHEVILLE NC
lVt\ \ 00 J ; ~ l\'\., A'f)\ \ I tI
1~215."
63,1.
83.~2
1515. 1.
50.0 C>
115215,_
63.18
83,52
1515,1'
So,oc
111(,,'12.
lnl.fl
TOTAL DUE ~
B
I
L
L
T
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RECEIVED IN GOOD CONDITION
WELLINGTON FARKS WELLFA EXCEPT AS NOTED
78 KONHAUS ROAD PREPAID
FIRM
KECHANICSIURO PA 1781515
FiEC. BY:
ORIGINAL
DATE
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FARM' (717) 691.3377
FAX. (717)790.0489
MAKE INVOICE PAYMENT TO:
PHOENIX POULTRY CORPOAAYION
ITEM DESCRIPTION
CHICKEN BROILER SHELLS 3.3l'1 LBS.
CHICKEN FRYERS WHOLE)
WHOLE ROASTER CHICKENS 4Ml'I LBS.
CHICKEN BREAST. BONELESS SKINLESS
N SKIN
CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT
CHICKEN LEGS. REGULAR
CHICKEN LEGS. QUARTERS
CHICKEN DRUMSTICKS
CHICKEN THIGHS
CHICKEN THIGHS. BONELESS, SKINLESS
CHICKEN WINGS
CHICKEN WING DRUMMETIES
CHICKEN BUFFALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
CHICKEN SAUSAGE. HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE. BREAKFAST
CHICKEN S,I\USAGE . PLAIN MILD ITALIAN
WHOLE YOUNG TURKEY
WHOLE TURKEY BREAST
TURKEY BREAST BONI!~ESS WISKIN. NEr ,1
. -----F~-~.:4
I . ,"
---- -------.---.-..-.--,.....-.
Dale:
.
. Order Placed BV:
' I
\
I Name
I Addrell_~
QUANnrv
TOTAL CASES
ORDER NO. O:",.~q29
70 KONHAUS ROAD
MECHANICSBURG, PA 17066
Telephone No. _
SIale
-Zip
0,
U
HIlAY IlACK
WEIGHT
, . ~ .
, ,
.
. SHIPPING INSTRUCTIONS -
TOTAL
/ l ,r+-
-t- I, ,(
/\'\''''
IIlLl. OF LAlJING. SHIPPER'S COpy
~1IJ~lt:vt YmmJ
FARM. (717) 691.3377
FAX' (717) 790"0469
MAKE INVOICE PAVMENTTO:
PHOENIX POULTRV CORPORATION
Dale:
ORDER NO. 0114j25
\', I
,
i
!-.
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..,---
70 KONHAUS ROAD
MECHANICSBURG, PA 17055
Ord.r Placed By: ~__ .
.r
___ Telephone No.
ITEM DESCRIPTION
CHICKEN BROILER SHELLS 3.3~ lBS.
CHICKEN FRYERS WHOLE
WHOLE ROASTER CHICKENS 4~-6~ LBS.
CHICKEN BREAST. BONELESS. SKINLESS
CHICKEN BREAST. BONElESSJflS!illi
,! ." _ CHICKEN BREAST - WHOLE
CHICKEN BREAST. SPLIT
CHICK~N LEGS. REGULAR
CHICKEN lEGS. QUARTERS
CHICKEN DRUMSTICKS
CHICKEN THIGHS
,,,- CHICKEN THIGHS. BONELESS. SKINLESS
CHICKEN WINGS
CHICKEN Wlt.!~ DRUMMEnES
CHIC/(EN BUFfALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
CHICKEN SAUSAGE - HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE - BREAKFAST
CHICKEN SAUSAGE. PLAIN (MILD ITALIAN
WHOLE YOUNG TURKEY
------,-- WHOLE TURKEY BREA!I'f
_ ,TURKEY,BREAST BONELESS W/SKIN. NET
Name
Addreaa
QUANTITY
TOTAL CASES
_ Stale
Zip
I" ULK
y. TRAY IIACK
WEIGHT
\ 'J' (
,
. SHIPPING INSTRUCTIONS -
TOTAL
,
I, '.
BIl.l. OF l.ADING - SIIIPPER'S COpy
7/;1&'#Jut g-onJ/J
FARM' (717) 691.3377
FAX'(717)7~89
MAKE INVOICE PAYMENT TO:
PHOENIX POULTRY CORPORATION
Date: __\__ '
ORDERNb. 0; l ~ ~;j?4
Order PIacad By: _ '.
Name
Addresa ~
70 KONHAUS ROAD
MECHANICSBURG, PA 17055
Telephone No, _...:.
.
, I
QUANTITY
~
,;"..
_ Slale
Zip.
ITEM DESCRIPTION
CHICKEN BROILER SHELLS 3-31'. LBS.
CHICKEN FRYERS WHOLE
WHOLE ROASTER CHICKENS 41'.-81'. LBS.
CHICKEN BREAST. BONELESS SKINLESS
IlEA.$T . BONELESS. W/SKltL
CHICKEN BREAST. WHOLE
CHICKEN BREAST. SPLIT
CHICKEN LEGS. REGULAR
CHICKEN LEGS. QUARTERS
CHICKEN DRUMSTICKS
CHICKEN TlIIGHS
CHICKEN THIGHS. BONELESS, SKINLESS
CHICKEN WINGS
CHICKEN WING DRUMMETTES
CHiCKEN BUFFALO WINGS
CHICKEN NECKS
CHICKEN BACKS
CHICKEN LIVERS
CHICKEN SAUSAGE. HOT' SPICY
CHICKEN SAUSAGE. CHEESE' PARSLEY
CHICKEN SAUSAGE - BREAKFAST
CHICKEN SAUSAGE. PLAIN (MILD ITALIAN
WHOLEYOUNG TURKEY
- ,
WHOLE TURKEY BREAST
TURK~~BREASTBONELESSW/SKIN.N~T
.1
HIlAY JV.CK
WEIGHT
.--.......J .
............ .",~,.l'" ..'
L... '!). l!
-
/., )
____... _L....__.............. ........ ...._.__.~
"
TOTAL CASES
. SHIPPING INSTRUCTIONS.
TOTAL .
811.1, OF tAOINO.. SllIPPER'S COPY
,
'HODIX 'OULTRY COR'"
PlaintUf
v
JACOB PL.ISBKAH A SONS,
INC.,
IN a.1 NONJURY TRIAL
"
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IN TH. COURT OP COIDION 'LIIA8 OP
CUIIII.RLAIID COUNTY, 'DlNSYLVANIA
CIVIL ACTION - LAW
94-63S8 CIVIL T.RH
ORD.R 0' COURT
AND NOW, thi. 14th d.y of Febru.ry, 1996, .t
10115 ..." .fter tri.l without. jury, the court find. in f.vor
of the plaintiff, 'hoenix Poultry Corpor.tion, .nd ag.in.t the
defendant, J.cob Plei.hman . Son., Incorporated, in the amount
of '25,080,20 together with intere.t .t the leg.l rate from
Augu.t 1, 1990&.
Anthony J. Ne.tioo, ..quire
'or the 'laintiff
Le.lie B, Handler, ..quire
'or the Defend.nt
Ibg
By the Court,
,Ad-
He..; J.
,>,~;'.'<<l ~/'S/9'.
,"", f'o
PHOENIX POULTRY CORPORATION, : IN THE COURT OP COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PP.NNSYL VANIA
v.
NO. 6388 Civil 1994
JACOB PLElSHMAN I: SONS,
INC.,
CIVIL ArnON - LAW
Defendant
PRAECIPE TO ENTER JUDGMENT
To the Pro&honoWy:
c
(.
'"
I
Pursuant to Pennsylvania Rule of Civil Procedure 227.4, kindly enter
Judal1lCftt 01\ the Order of Juclae Kevin A. Hess, dated Pebruary 14, 1996, in the amount of
Twenty-Pive ThouSllld, Eilhty Dollars and 20/100 (S2~,080.20) toaether with interest at the
Icpl rate from AUlust I, 1994, in the above-captioned matter, U no appeal wu taken within
I,
thirty (30) day. of the entry of the order (See Exhibit A attached hereto).
Ie MELL01T
EC~~
C:::d~
ANTHONY. TI 0, Esquire
Supreme Ct. .D. 158868
One South Market Square Buildinl
213 Market Street
Harrisburl, PA 17101
(717) 237-6000
Attorneys for Plaintiff Phoenix Poultry,
Corporation
~
.,
..,I
DATE: A"I\IIl 30, 1996
IT 15 hereby certifled this 3Mday of tlt~ ' 1996, that Judlment wu entered
in favor of Plaintiff, apinll Defendant, In the amount of Twenty-Pive Thousand, Eilhty Dollars
ancI2OI100 (S2',OIO.20), lDIetller with interest at the lep! rate from AUlusa I, 1994.
;"
il
i',
~ (). )J4.{;.y ~~ , 1f.L~
tDTD'I~...n: 011' ~D.VICE
I, AaIhony J. Nutlco, Elquln, hereby c:ettlfy that I am this day aervin& a copy
of tile foqpJina document upon the penon(s) and In the manner Indlcaled below, which IUVice
IIIiIIiea the requiNmentJ of the PennJylvanla Rules of Civil Procedun, by depoaitin. a copy
of the 11IIII ill the United SIaIeJ Mall, Hurisbura, Pennsylvania, with f1nt-c1us poICIae pnpIid,
II follow.:
Leslie Handler, Esquln
Handler " Wiener
P.O. Box 1177
319 Market Street
Hurisbur., PA 17108
ECKERT SEAMANS CHEIUN II MEU.O'IT
a
ANTHONY J. TI 0, Esquire
Supreme Ct. .D. "8868
One South Market Squue Buildln.
213 Market Street
Hurisbura, PA 17101
(717) 23HOOO
Attomeys for Plaintiff Phoenix Poultry,
Corporation
DATE: AIIIUII 30, 1996
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