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Home My WebLink About94-06714 )l. ... .c qI o ~ 0- . '" 7 c .e ~ .] ; ~ , c '- j ~ ~ ~ j J ! ; , I :::z- I ! - I C"" ~ NEW MATTER 5, Defendant hereby incorporates Paragraphs 1 - 4 as if the averments are fully set forth herein. 6. Defendant Phoenix Poultry Corporation and Free Range Farms, Inc. are independent corporate entities, 7, plaintiff alleges that Phoenix Poultry was doing business with Free Range Farms interchangeably and was funding money with Free Range Farms interchangeably. To the contrary, Free Range Farms and Phoenix poultry have no common ownership, and the two corporate entities did not enguge in a practice of funding money interchangeably, 8, Plaintiff is attempting to hold Defendant liable for ~n alleged breach of contract by Free Range Farms, Defendant has no legal obligation or duty with regard to alleged acts or omissions of Free Range Farms, 9. Upon information and belief, the two alleged contracts forming the basis of Plaintiff's action against Free Range Farms were for the sale of goods, and both contracts exceeded $500 in value. 10, Neither contract was in writing, and neither contract was signed by Defendant as required to be enforceable under the provisions of the statute of frauds, 13 Pa,C,S, ~2201(a). Thus, Plaintiff is barred from pursuing a claim against Defendant based on Free Range Farm's alleged breach of contract, -2- 11, Plaintiff filed the Complaint against Phoenix poultry in an attempt to hold Phoenix poultry liable for the debt or default of another, specifically Free Range Farms, 12, 33 P,S, ~3 states that no action shall be brought against a defendant charging defendant to answer for the debt or default of another, unless the agreement upon which the action brought is in writing and signed by the party to be charged, 13, No writing exists signed by Phoenix poultry which sets forth an agreement accepting responsibility for the debts or default of Free Range Farms, Thus, Plaintiff's action against Defendant ia barred by the statute of frauds, 14, Additionally, Plaintiff maintains that Free Range Farms ordered the goods mentioned in the Plaintiff's complaint and failed to pay for them, Plaintiff now brings suit against Defendant attempting to secure payment for the goods, 15. Upon information and belief, Defendant admits that the goods were delivered to Free Range Farms as alleged by Plaintiff in its Complaint against Free Range Farms. 16, However, upon information and belief, Defendant avers that the goods delivered to Free Range Farms were not fit for their particular purpose and not merchantable, thus breaching the implied warranties associated with delivery of the goods, 17, Upon information and belief, the whole breast and split breast meat were mostly without skin or missing large sections of skin, rendering it unfit for sale. The boneless, skinless thigh -3- OJ'> en -:-- -; :-- '.1,' L' r- . U'"l ': . '" ,..... '" or. ... --, u ..... ~ I ..... . 'j ~~ ~ ~ ~ ~ I ~ ffi~~ ~ ~ p. ~ ~~~ ~~ ~ ~ i~ ~m ~ ~ i . ~ ~Hil~ > ~ !p ~ ml ~ ~ ~~ ! i ~!~ ~ 2 . ' . ' . ,.... ,_...0. .., . . .' . . 10. Admitted in part and denied in part. It is admitted that there was no written contract signed by the Dsfendant, other than the credit application (Exhibit "B"). It is averred, however, that based on the Credit Application attached hereto marked Exhibit "B", shows joint applicants and based upon Exhibit "A" attached hereto shows joint obligation, on account, which requires no writing for each and every charge on said account. 11. Denied. The reply to paragraph 11 is the same as the reply to paragraph 8 above which is hereby incorporated herein by reference and made a part hereof. 12. Admitted in part and denied in part. It is admitted that here was no written contract but it is averred that ,there were open account terms granted based on the Credit Application (Exhibit "B") submitted and signed by the Defendant. 13. Denied. The reply to paragraph 13 is the same as the reply to paragraph 8 above which is hereby incorporated herein by reference and made a part hereof. 14. Denied. The reply to paragraph 14 is the same as the reply to paragraph 8 above which is hereby incorporated herein by reference and made a part hereof. 15. This paragraph needs no reply as Defendant admits same. 16. Denied. It is denied that the goods were not fit and not merchantable. To the contrary all goods delivered were USDA inspected and approved and fit for human consumption. 17. Denied. To the contrary, the Plaintiff has received no formal Complaint detailing any particular problem with the goods shipped and received by Defendant, and they were, in fact, fit for sale. lB. Denied. The reply to paragraph IB is the same as the reply to paragraph 17 above which is hereby incorporated herein by reference and made a part hereof. 19. Denied. The reply to paragraph 19 is the same as the reply to paragraph 17 above which is hereby incorporated herein by reference and made a part hereof. 20. Denied. It is averred that the value of said goods is in the sum of $15,040.95 as evidenced by the attached Exhibit "C" which is incorporated herein by reference. It is also averred that the reply to paragraph 20 is the same as the replles to paragraphs 7 and B above which is hereby incorporated herein by reference and made a part hereof. WHEREFORE, the Plaintiff respectfully requests your Honorablu Court for Judgment in favor of the Plaintiff and against the Defendant. Respectfully submitted: N. C r B op er M Esqu re Sup. ct. I.D. .2 145 East Market York, PA 17401 Telephone (717) 043-0046 Attorney for Plaintiff .' WAmUABMS. ,W.AYtJE,;FARMC;~ Conllnenlal Grain Company P.O. Drawer CS 198202 Atlanta, GA 30384-8202 lsr H FREE RANGE FARHS I HECHANISBURG PA P Order 0014376 INVOICE NO. 4014199 s r 0226400 o FREE RANGE FARHS L 70 KONHOUS ROAD o I CUSTOMER CONTACT HECHANISBURG PA 1701515 T .JoL LV N T oL o .J 'AYMENT POR THIS INVOICE MUST BE RECEIVED BY WAYNE FARMS ON OR BEFORE 10/30/93 USTOMI.. OAOI.. NO. AND DATI TI_ CAPlRIIA 1',0.8. 10 DAYS PROM INVOICE WAYNE - DECATUR -ilrfl'INO/INVOICl DATI ARRIVAL DATI I MOOR. RlellVeD BY DRIVIR'S SlGNATURI INVOIClO IV 10/20/93 10/21/93 Albertvill BOXES PRODUCT DESCRIPTION BOXES WT. POUNDS PRICE/LB, AMOUNT )RDERED CODE SHIPPED PER BOX QU ""~, ".. WUU ilU ItU OUt Ut" ~I QU .UU J!U'/. UlI .OJO llnil.l:IO 40 310799 WH/BRST 40' "A" ICE 40 .00 1600.0C .995 1592.00 20 320749 S/BRST 40' 20 .00 800.0C .995 796.00 20 340100 W/LEG 40' 20 .00 800. ~~ .410 328.00 20 3806915 THIGHS 40' 20 .00 800.0 .410 328.00 20 580978"GIZZARDS 8/15 20 .00 800.0C .350 280.00 " \. . - Freight .00 TOTALS 170 7907.0C 5'296.95 ;OMMENTS: ,- APPROVED . ACCOUNTS RECEIVABLE 'OL.311"11I, AIIlll IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONTINENTAL GRAIN COMPANY, : NO. 94-6714 WAYNE FARMS DIVISION, : Plaintiff : v. : CIVIL ACTION - LAW : PHOENIX POULTRY CORPORATION, . . Defendant CERTIFICATE OF SERVICE AND NOW, TO WIT, thiB I'll:!- day of January, 1995 , I, N. Chrietopher Menges, Esquire, do hereby certify that I caused to be delivered by First Class Mail, postage prepaid, a copy of the Reply To New Matter pursuant to Pennsylvania Rule of Civil Procedure 2232 (b) upon the following: Respectfully submitted: HENOES & SNYDER N. C r s Sup. ct. I.D. 123166 Attorneys for Plaint f 145 East Market Street York, pennsylvania 17401 ..,.,.. !;;) ,. c',) -- ' '. ~ ',,-; \ 'e,...., I," "4 ~ ~ ~-'" I , a ! -, j ~ '. 1 ~ - :- r---rl! _t. ) ..-".: " ~~N) I,""\< ~ iY') 'II-> - ~ J '-4- ~_ ~G\ ;L ~ . it: . ..... ! . '.;:J p ~ E-t ffi~~ ~~ i ~ ~s '" Z H ~ ~ ~ . ~ 0<( lUll II ~ ~ > ..:l I '" ~ ! 0 ; u ~~ , ~!~ 2 " .... ......,... -... -. ....,. . ' . ' " SHERIFF'S RE'ruRN CXM-lONWEAL'Ill OF PENNSYLVANIA, COUNI'Y OF CLMBERLJIND In The Court of Common Pleas of Cumberland County, Pennsylvania No. 94-6714 Civil Term Complaint in Civil Action Law and Notice Continental Grain Company, Wayne Farms Division VS Phoenix Poultry Corporation Michael Barrick _, ~!U'i<rofXHil Deputy Sheriff of Cunberland County, Pennsylvania, who boiJlg duly sworn according to law, says, that he served the within Complaint in CIvil Action Law and Notice upon Phoenix Poul try Corpora tion , , the defendant, at 10:20 o'clock A .M. EST I DS'R, on the 01 December 1994 at , - day of 70 Konhaus Rd., Mechanicsburg , Cumberland County, Pennsylvania, by handing to George Oppenheimer ,. a true and attested copy of the Complaint in Civil Action r,aw and Notice, and at the sarre time directing his attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's CostSI Docketing Service Affidavit Surcharye 14.00 5.04 So ans~~~ .1--( ~ ~~~..;....4-_""-_"'.~-".'~ ~ ..... ._:P-:......?::.c! 7 ,. ...... ;. . 2.00 21.04 Pd. by Atty. 12-02-94 R. Thanas Kline. Sheriff .' by / ! Sworn and subscribed to bofore me Deputy Sherif' this I.). ~ day of Ai2.u.L"<~ 19 9'( . ^.D. ,/~lL C, ~-'. ~' Prothonotary