HomeMy WebLinkAbout95-06238
lAK/302.2.1I041896
A VISO
USTED HA SIDO DEMAND ADO EN LA CORTE. Si usted desea defenderse de las quejas
expuestas en las p4ginas siguientes, debe lomar acci6n dentro de veinte (20) dras a partir de la fecha
en que recibi6 1a demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 por
abogado y presentar en la Corte por escrito BUS defensas 0 sus objeciones alas demandas en au contra.
Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir
en su contra sin rnas aviso 0 notificaci6n por cualquier dinero reclamado en la demanda 0 por cualquier
otra queja 0 compensaci6n'reclamados por e1 Demandante. USTED PUEDE PERDER D1NERO,
o PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED.
UEVE ESTA DEMANDA A UN ABOGADO INMEDlATAMENTE. SI USTED NO T1ENE
o NO CONOCE UN ABOGADO, VA Y A 0 LLAME A LA OFICINA EN LA DIRECCION ESCRlTA
ABAJO PARA AVERlGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL.
Court Administrator
4th Floor
Cumberland County Courthouse
Carlisle, PA 17013
Telephone: (717) 240-6200
--_...,""--"
IAKlJ0242,1I041896
4. Fry is a printing company that holds itself out as having special expertise, knowledge
and skill to print magazines for newsstand distribution.
S, In August 1993, Lifetime and Fry entered into an agreement for the printing of "Money
Lines" and "FeU's U.S. Coins."
6. Pursuant to the agreement, Fry was to print quarterly issues of the aforementioned
magazines for Plaintiff, for newsstand distribution over a three year period.
7. Thereafter, Fry printed numerous issues of "Money Lines" and "FeU's U.S. Coins"
for Plaintiff. On each occasion up to Apri127, 1994, when Fry printed "Money Lines" and "FeU's
U.S. Coins", Fry printed UPC codes on the rnagazines.
8. On or about Apri127, 1994, Fry printed one issue of "Money Lines" and one issue
of "FeU's U.S. Coins" for Plaintiff.
9. In order to print the covers for these magazines, Fry was provided with two pieces
of film per magazine. One of the films contained the graphics for the cover and the other film contained
the UPC code which was to be placed on the cover.
10. Although Fry was provided with the film containing the UPC code, Fry printed the
magazines without the UPC code on the magazine covers.
11. Magazines for newsstand distribution such as "Money Lines" and "FeU's U.S. Coins"
cannot be sold without UPC codes.
12. After Fry printed the magazines without the UPC code, Fry forwarded the magazines
to Clark Distributing Company, who discovered the error and notified Fry.
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JAKl30242.I/04f896
13. Upon being infonned of the problem, Fry failed to take any action to correct the problem
or to prevent distribution of the magazines to approximately three hundred wholesalers.
14. As a result of Fry's conduct, Plaintiff has suffered loss, harm and damage which consists
of the cost to print stickers containing the UPC code, the cost to mail the UPC stickers to wholesalers
and the labor cost associated with affixing the UPC stickers to the magazines. In addition, Plaintiff
has suffered lost sales and lost profils as a result of Defendant's aClions.
COUNT I
LIFETIME PERIODICALS,INC. v. FRY COMMUNICATIONS, INC.
BREACH OF CONTRACT
15. The alJegations contained in ~ Ilhrough 14 are incorporated herein by ref~"Ix:ed.
16. Although Fry provided Plaintiff with a contract for execution, a contract was never
execuled by the panies.
17. The contract in this case is composed of oral communications and is based, in pan,
on the course of dealings between the parties.
18. In printing magazines prior 10 April 27 , 1994, Fry printed the UPC code on each issue
of "Money Lines" and "Fell's U.S. Coins".
19. In printing the Summer 1994 issues of "Money Lines" and "Fell's U.S. Coins", Fry
did not print the UPC code on the cover even though Plaintiff provided Fry with the UPC code.
20. In failing to print the UPC code, Fry breached its contracl with Plaintiff.
21. As a result of Fry's breach, Plaintiff suffered damages as set forth in Paragraph 14.
5
JAKl30242.1/04IS96
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,
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WHEREFORE, Plainliff respectfully requesls this Court enler judgment in ils favor and against
Defendant in an amount in excess of Twenly Thousand ($20,000.00) Dollars plus interest and costs
of sull.
COUNT II
LIFETIME PERIODICALS, INC. v. FRY COMMUNICATIONS, INC.
PROMISSORY ESTOPPEL
22. Plaintiff incorporales herein by reference the allegations of Paragraphs 1 through 21
\'
above.
23. Prior to Plaintiff retaining Defendant, Defendant represenled thaI II would properly
publish Plaintiffs magazines.
24. Plaintiff, relying on Ihe represenlalions of Defendant, retained Defendant to print the
magazines.
25. In so relying on Defendant, Plainliff has been harmed since Defendant, as set forth
above, did not properly publish the magazines.
WHEREFORE, Plaintiff respeclfully requests this Court enler judgment in its favor and against
Defendant in an amount in excess of Twenty Thousand ($20,000.00) Dollars plus interest and COlts
of suil.
6
.
1AKl30242,11lU1196 .
COUNT III
LIFETIME PERlODCALS, INC. v. FRY COMMUNICATIONS, INC.
BREACH OF WARRANTY
26. The aIJegluions COJVaJned in plU'llgraphs Ilhrough 2S are incorporated herein by rere....uxI.
27. Fry is a printer that holds itself out as having special expertise, knowledge and skill
to print magazines for newsstand distribution.
28. Fry knew the purpose for which II was printing the magazines for Plaintiff.
29. Fry knew that Plaintiff was relying on Fry's skill, knowledge and experience in printing
the magazines.
30. By failing to print UPC codes on the cover of the magazines, Fry breached the implied
warranty of merchantability.
31. By failing to print UPC codes on the cover of the magazines, Fry breached the implied
warranty of fitness for a particular purpose.
WHEREFORE, Plaintiff respectfully requests this Court enter jUdgment in its favor and against
Defendant in an amOunt in excess of $20,000.00, plus interest and costs of suit.
By:
ennifer ,
Supreme Court No. 65950
100 East Market Street
P. O. Box 15012
York, Pennsylvania 17405-7012
(717) 846-8888
7
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JAKl30242,1104"1896
CERTIFICATE OF SERVIC~
AND NOW, this..2:1=- day of April, 1996, I, Jennifer A. Kline, Esquire, hereby certify
that I have served the within Complaint by d~poslling the same in the United States mail, postage
prepaid, at York, Pennsylvania, addressed as follows:
.'
Theodore A. Adler, Esquire
2331 Market Street
Camp Hill, PA 17011
By
17405-7012
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LIFETIME PERIODICALS, INC.,
Plaintiff
No. 95-6238 civil Term
vs.
FRY COMMUNICATIONS, INC.,
Defendant
PRABCIPB TO SBTTLB, DISCONTINUE AND BND
To the Prothonotary:
please mark the above-captioned action as discontinued in its
entirety, with prejudice. Plaintiff Lifetime Periodicals, Inc. hereby
discontinues the action with respect to all claims against Defendant
Fry Communications, Inc.. Defendant Fry Communications, Inc. hereby
discontinues the action with respect to all counterclaims against
Lifetime Periodicals, Inc.
Date:
t,1/rlff!
I ,
By: ,
innl.
Supreme Court No. 74453
100 East Market Street
P. O. Box 15012
York, PA 17405-7012
(717)846-8888
Counsel for
Lifetime Periodicals, Inc.
By:
Denis F. She Is, Esquire
1101 Market Street, Suite 2400
Philadelphia, PA 19107-2924
Counsel for
Fry Communications, Inc.
,.
th<'.f>f(y:~rt':#,~....,i1fo;'i.;"';''''
IN THB COURT OF COIOlON pLIAS OF CUMBERLAND COUlfTY, PENNSYLVANIA
CIVIL ACTION - LAW
LIFBTIMZ PERIODICALS, INC.,
Plaintiff/counterolai.
Defendant
,
.
: No. 95-6238 Civil Tera
.
.
:
.
.
.
.
v,
,
.
FRY COKMUNICATIONS, INC"
Defendant/Counterolai.
Plaintiff
:
:
,
.
.
,
....l:l!1I 'fa .....aft
TO: LIFBTIMZ PERIODICAts, INC,
YOU ARB HEREBY NOTIFIED TO FILE A WRIorrEM RESpONSE TO THZ
ENCLOSED NEW MATTER AND COUlfTERCLAIM WITHIN TWENTY (20)
DAYS FROM THZ SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED
AGAINST YOU.
,C.
ADLER, ESQUIRE
Dated: May 13, 1996
o
"
I. TRI COURT O. COKKOII .LBAS O. CUKBBRLAHD COUWTV, .....YLVAMIA
CIVIL ACTIOII - LA.
LI.ITI.. ...IODICALS, IIIC.
plaintiff/counterolaim
Defen4ant
I
I
I
I
I
I
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I
I
I
I
110. '5-'23' civil Tera
v.
ftV COJIIIUIIICATIO.I, IIIC.,
Defen4ant/counterolaim
Plaintiff
D..IJIDAIlT ..V COIDIUIIICATIOIIS, IIIC, 'I US.O, ... 1IA'l'T0
AlII) COUWTOCLAIII TO PLAIIlTU.' S lUIDlDBD COIIPLAIII'1'
Defendant, Fry Communications, Inc, ("Fry") hereby
answers plaintiff's Amended Complaint as follows:
1, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph,
2, Admitted,
3, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph,
4, Denied as stated, It is admitted only that Fry is
a printing company, The remaining allegations of this paragraph
are denied,
5, Denied as stated, It is admitted that plaintiff
Lifetime periodicals, Inc. alkla Block-Buster Periodicals, Inc,
("Lifetime") and Fry entered into an agreement for the printing
of "Money Lines" and "Fell's U.S, Coins" in or about the fall of
1993, A true and correct copy of the agreement is attached
hereto as Exhibit "A", The remaining allegations in this
paragraph are denied,
6. Denied as stated, Since the agreement is in
writing, it speaks for itself.
7, Denied as stated. It is admitted that prior to
April 27, 1994, Fry had printed 2 issues each of "Money Lines"
and "Fells U,S, coins". It is further admitted that for these
issues Lifetime provided Fry, pursuant to the agreement, with gna
composite page negative that included a UPC code, The remaining
allegations in this paragraph are denied,
8, Admitted,
9, Denied as stated, It is admitted that in
connection with the April, 1994 printing of "Money Lines" and
"FellS' U,S, coins" Fry was provided with two pieces of film per
magazine by plaintiff, By way of further response, this was
contrary to the terms of the agreement which required one
composite page negative and which had been the practice followed
by Lifetime for the previous issues. Furthermore, the film
provided by Lifetime containing the UPC code was not readily
noticeable in the package provided, On the contrary, the film
containing the UPC code was hidden in an envelope taped to the
back of an artboard, No verbal or written notification of thie
was provided to Fry, Finally, Lifetime was provided the
opportunity to approve the "proof" or "bluelines" prior to
printing, Lifetime waived approval of the bluelines and thue
'.
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"appt'oved" the magazines in the form in which they were printed.
10, Denied as stated, It is admitted that the
magazines were printed without the UPC code on the magazine
covers, This was due to Lifetime's failure to comply with the
terms of the agreement and to abide by its previous practice of
providing one composite negative which included a UPC code,
11, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph,
12, Denied as stated, It is admitted only that the
maga~ines had been forwarded to Clark Distributing company, The
remaining allegations in this paragraph are denied.
13, Denied, The allegations asserted in this
paragraph are denied, It is specificallY denied that Fry did not
take any action after Lifetime notified Fry that Lifetime
intended to include a UPC code on the magazines,
14, Denied, Fry specifically denies that Lifetime has
suffered any loss or harm as a result of Fry's conduct or
actions,
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.
-.
COUNT I
15, Detendant Fry repeats, reiterates and realleges
each ot the averments set forth in paragraphs 1 through 14 ot
this Answer as if fully set forth herein,
16, Denied as stated, It is admitted that Fry
provided Litetime with the agreement, a copy ot which is attached
hereto as Exhibit "A", Although Lifetime never provided
detendant with an executed copy, its terms and conditions had
been and were accepted by Lifetime through its words, action. and
course of conduct,
17. Denied as stated, The agr.eement is attached
hereto as Exhibit "A", The agreement's terms and conditions had
been and were accepted by plaintiff through its words, action.
and course of conduct, The remaining allegations asserted in
this paragraph are denied,
18, Denied as stated, It is admitted that prior to
April 27, 1994, Fry had printed 2 issues each ot "Money Lin.."
and "Fell's U,S, coins". It is further admitted that tor the..
issues Litetime provided Fry, purauant to the agreement, with ani
composite page negative that included a UPC code, The remaining
allegations in this paragraph are denied,
19, Denied as stated, It is admitted that in
connection with the April, 1994 printing ot "Money Lin.." and
"Fell's U.S, coins" Fry was provided with two pieces ot tilm p.r
magazine by Lifetime. By way of further response, this wa.
contrary to the terms of the agreement which required on.
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composite page negative and which had been the practice followed
by Lifetime for the previous issues, Furthermore, the film
provided by Lifetime containing the UPC code was not readily
noticeable in the package provided, On the contrary, the film
containing the UPC code was hidden in an envelope taped to the
back of an artboard, No verbal or written notification of this
was provided to Fry, Finally, Lifetime was provided the
opportunity to approve the "proof" on "bluelines" prior to
printing, Lifetime waived approval of the bluelines and thus
"approved" the magazines in the form in which they were printed.
20, Denied, It is specifically denied that Fry
breached its contract with Lifetime.
21, Denied, It is specifically denied that Fry is in
breach of the contract, It is further denied that Lifetime has
suffered any loss or harm as a result of Fry's conduct or
actions,
WHEREFORE, defendant Fry prays that judgment on the
Amended Complaint be entered against plaintiff Lifetime and for
defendant, with costs assessed against plaintiff,
COUNT :n
22, Defendant Fry repeats, reiterates and realleges
each of the averments set forth in paragraphs 1 through 21 of
this Answer as if fully set forth herein,
23, Defendant Fry denies knowledge or information
sufficient to form a belief as to the truth of the allegations
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contained in this paragraph, Fry demands strict proof thereof at
trial,
24, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph, Fry demands strict proof thereof at trial,
25, Denied, Fry specifically denies the allegations
that it did not properly publish the magazines, Fry further
denies that plaintiff has suffered any loss or harm as a result
of Fry'S conduct or actions.
WHEREFORE, defendant Fry prays that judgment on the
Amended Complaint be entered against plaintiff Lifetime and for
defendant, with costs assessed against plaintiff,
COUNT III
26, Defendant Fry repeats, reiterates and rea 1 leges
each of the averments set forth in paragraphs 1 through 25 of
this Answer as if fully set forth herein,
27, Fry as stated, It is admitted only that Fry is a
printing company, The remaining allegations of this paragraph
are denied,
28, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph.
29, Fry denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
this paragraph,
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,'" -~,-~-,-,.._..
,
,
30, Denied, It is specificallY denied the Fry
breached the implied warranty of merchantability,
31, Denied, It is specifically denied that Fry
breached the implied warranty of fitness for a particular
purpose,
WHEREFORE, defendant Fry prays that judgment on the
Amended complaint be entered against plaintiff Lifetime and for
defendant, with costs assessed against plaintiff.
liD MATTII!.
a~FIRMATIVI DIFIIISIS
32, plaintiff's causes of action fail to state a claim
upon which relief can be granted,
33, plaintiff's claims are barred by the doctrines of
waiver and estoppel,
34, plaintiff's claims are barred by the doctrine of
unclean hands,
35, plaintiff's claims are barred by the doctrines of
excuse, release, satisfaction and discharge,
36, plaintiff's claims are barred, in whole or in
part, by reason of the applicable statutes of limitations,
37, plaintiff's claims are barred by plaintiff's
material breaches of contract,
38, plaintiff frustrated the purpose of the agreement
by its conduct,
39, plaintiff has failed to mitigate its alleged
damages,
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40, Any damages sustained by plaintiff are ~ minimis,
remote and speculative,
41, Consequential or incidental damages are excluded
under the terms of the agreement,
42, To the extent any amounts are owed by defendant to
plaintiff, such amounts are offset by the amounts owed defendant
as a result of plaintiff's breach of contract,
COUNTBRCLAIM
Defendant, Fry Communications, Inc, ("Fry") by way of a
counterclaim against plaintiff says:
COUNT I
BREACH or CONTRACT
43. Defendant - counterclaim plaintiff Fry repeats,
reiterates and real leges each of the averments set forth in
paragraphs 1 through 42 above,
44, In or about the fall of 1993 Fry and
plaintiff/counterclaim defendant Lifetime entered into an
agreement for the printing of "Money Lines" and "Fell's U,8,
Coins", A true and correct copy of this agreement is attached
hereto as Exhibit "A",
45, Pursuant to the agreement, Fry printed 3 i..ue.
each of "Money Lines" and "Fell's U,S, Coins",
46, Fry submitted to Lifetime its invoices 35187,
35781, 37435, 37486, 38858, 40030 and 41136 on or about 8epteaber
15, 1993, November 17, 1993, February 3, 1994, January 7, 1994,
-8-
^pril 7, 1994, April 27, 1994 and March 7, 1~94 respectively for
it. .ervic..,
47, Payment ot the invoices, totalling $2,279.82, is
pa.t due and Litetime has tailed and retused to pay said amount
in breach ot the terms ot the agreement,
COUNT II
aCCOUNT 8TaTBD
48, Detendant/counterclaim plaintiff Fry repeats,
reiterate. and realleges each ot the averments set forth in
paragraphs 1 through 47 above.
49. Fry performed printing services for Lifetime upon
cpen acccunt tor which it rendered its invoices 35187, 35781,
37435, 37486, 38858, 40030 and 41136 to Lifetime on September 15,
1993, November 17, 1993, February 3, 1994, January 7, 1994, April
7, 1994, April 27, 1994 and March 7, 1994, respectively,
50, Litetime has tailed to object to or controvert the
invoice. .ubmitted.
51, Litotime has failed and refused to pay $2,279.82
due upon the atoresaid invoices.
WHEREFORE, defendant/counterclaim plaintiff Fry
r..pecttully requests that the Court enter judgment in its favor
and against plaintiff/counterclaim defendant Lifetime as follows:
(a) dismissing with prejudice the claims asserted
against Fry in the Amended Complaint;
(b) entering judgment for Fry and against
Lifetime on Fry's counterclaims;
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VERIFICATION
Mary Roberts, Comptroller for Fry communications,
Inc., affirr118 that the facts set forth in the foregoing
Anewer, New Matter and Counterclaim are true and correct
to the beet of her knowledge, information and belief,
I understand that false statements are subject
to the penalties of 18 Pa. c.s. 54904 relating to unsworn
faleification to authorities.
~ IJM-
Ha~berts
DATE I HAY 8, 1996
1"AR-0"-I"~ 1111118 FR0I1 ~foll ~UC1'U~1I~HIIUI'C
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FRY
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Plle_ I
Number: 12606-R
PROPOSAL
Requcslied by: Chris Locke 0 ext. 281
.
Block-Blister Periodicals. Inc.
AtllI; Don LeUlII
2131 HoI1~wood Drive
HoIlywooa. FL 33020
PIIoael (305) 925..5243 fax: (305) 925-5244
Dat.1 12/17193
1'1&-:
Quantit)'l
VarlaDal:
Slit:
Materlat:
1W0 TlTLES . Propoul for a three year contract
144 Pallel + 4 Pille Cover
One titl, at 50,000 caples and One title ,t 60,000 copies.
2"
5 3/16 · 7 5.18
Strip one nellllive per color per paae from supplied RIlED compolite pap
neptives. Make one set of bluclinc proofs. AU other prep work required wW be
additional.
'RII:
Piper:
Cover:
Sheetfec! ,4 Color Process, 4/0, Bleeds.
Non.heatset Web Orrset - 1/1, BIIdt ink only, No bleeds.
Ion CIS BI.24'"36 0 57.95/CWT
(Minimum 2 Week Order Time Required)
Or: 100' Ctd Free Sheet Bs.25-38 " 6S.oo/CWT
(Minimum 2 Week Order Time Rcquired)
Text: 3SN Abitibi Prem 70 Bs.~'"38 " 29.oo/CWT
(Minimum 5 Week Order nOle Required)
Or: 351 Se\ille 76 (76 briahtness: 88 Oplell)') 81.25-38 @ 2S.9OICWT
IMinim\.m 5 Week Otcler Time RequIred)
Or: 351 Bulky o5PT Ablrtbl 70 B5.205e38 41 29.OOICWT
IMlnlmum 6 Week Order Time Required)
Perfect Bind
....1
Cover:
Texl:
BIlIdlna1
Paeldn. &
Dlltrlbtllion:
Bundle for N~wS~Ia.nd dislributiol:,
F~V COMM'JNICATIONS. INC,
,717) 766.02111 F..: (7171 <<191,0341
OUI of Sill., leeOI 334,14a9/ln 51ot1': (eOOI 524.)2)2
BOO WeSI Chur,h Road. MtchlOlClburg. PI>. 17055
~-04-1l!96 HIIIl! FROl'l FRY COITUUCAT IONS
IU
DUe :w,iar-' ,...~/lU"'j
Nllmber: \';Z,j
PllCES PEa COpy PER TITLE:
5O,GOO Or 1 tItII
~~ 01 the odler +/. M'.
144 PAGES + COVEl (410):
PREP, PlUNT, PACK $.oas $.046
pERFECT BIND s.o27 $.023
PAPER COST:
COVEll:
IF tOrr CIS $.023 $.022
If 1001 em ('l1!Xl') 5.019 5.018
TEXT:
II' 3!' PlEM 70 $.086 $.084
II' !PT BULKY 70 (3!1) 5.086 $.084
IF 35' S~ 76 5.077 $.075
NEWSSTAND COST: 56.50TO sa.OOPBR cwr.
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I, ,_. _,,______....
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tm..r.rl!&" o. ...vrlm
aID lOW, thi. 13th day of May, 1996, I h.reby v.rify that I
have caUlled . true and cornet copy of the foregoinq dOCWllellt to b.
pl.ced in the u,s. ..il, fir.t cl..., po.tag. pr.paid .nd .ddr....d
a. follov.,
J.nnif.r A. Klin., B.q.
Paul W. Minnich, B.q,
Barl.y, snyd.r, S.nft , Coh.n
100 B..t Market Str..t
P.O, Box 15012
York, PA 17405-7012
LIPBTIME PERIODICALS, INC"
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
I
I
I
I
I
I
I
NO, 95-6238 CIVIL TERM
FRY COMMUNICATIONS, INC.,
Defendant
IN REI DEFENDANT'S PRELIMINARY OBJECTION
BEFORE OLER. J.
ORDER OF COURT
AND NOW, thh 1rd day of April, 1996, after careful
consideration of Defendant's preliminary objection in the nature of
a demurrer, and for the reasons stated in the accompanying opinion,
the preliminary objection is SUSTAINED and count I (negligence) of
Plaintiff's complaint is DISMISSED,
PLAINTIFF is GRANTED 20 days within which to file an amended
complaint if it cares to do so to supplement its contractual claim.
Defendant shall have 20 days from service of any such amended
complaint, or 20 days from the expiration of the time for filing an
amended complaint if none is filed, to file a responeive pleading.
BY THE COURT,
J
Jennifer A. Kline, Esq,
Paul W. Minnich, Esq,
BARLEY, SNYDER, SENFT' COHEN
100 East Market Street
P,O, Box 15012
York, PA 17405-7012
Attorneys for Plaintiff
. ,,' . d~'
... "!
, '
"'l
,
-. )
. 'C,,,__:;,,=.;..,'",'ct;\\-~4J:I~i"T"~; c:"~".', '<i'-:"': ~t:it-~"h~-:-"'i""P!~d'ti\';S'l~~1
Tbeodore A. Adler, Blq.
UAGIR . ADLlR, P.C.
2331 Market street
C.-p Bill, PA 17011
and
Robert A. Swift, Slq,
Denil r. Sheill, Ilq.
KOHlI, SWI" . GRAF, P.C.
2400 One Reading Center
1101 Market Street
Pbiladelphia, PA 19107-2924
AttorneYI for Defendant
Ire
~ ~~ lJ.h/9' .
.>!.~.
LIFETIME PERIODICALS, INC. , I IN THE COURT OF COMMON PLEAS OF
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
,
,
v. I CIVIL ACTION - LAW
I
FRY COMMUNICATIONS, INC, , I
Defendant I NO. 95-6238 CIVIL TERM
IN REI DEFENDANT'S PRELIMINARY OBJECTION
BEFORE OLER, J,
OPINION and ORDER OF COURT
Oler, J.
Thie action ariees out of an agreement between a publisher of
periodicals (Plaintiff) and a printer (Defendant), whereby
Defendant was to print certain quarterly periodicals for Plaintiff.
Allegedly, Defendant forgot to include bar codes provided by
Plaintiff on the covers of the periodicals, and a financial loss
resulted to Plaintiff,
Plaintiff's complaint contains a count for negligence and a
count for breach of implied warranties, For disposition at this
time is Defendant's preliminary objection in the nature of a
demurrer to the negligence count,
Based upon the general rule that a breach of contract is not
properly the subject of a claim for negligence, the preliminary
objection will be sustained,
STATEMENT OF FACTS
The allegations of Plaintiff's complaint may be eummarized as
~~
\,;,
,~
follows I
Plaintiff is Lifetime Periodicals, Inc" a Plorida
corporation having a business address of 2131 Hollywood Boul.vard,
Hollywood, Florida,
Defendant is Fry Communications, Inc. , a
Penneylvania corporation having II. business address of 800 w.st
NO. 95-6238 CIVIL TERM
Church Road, Mechanicsburg, Pennsylvania,
Plaintift is the publi.her of two quarterly periodical. known
a. "Money Line." and "Fell'8 U,S, Coin8."
In AUgU8t of 1993,
Plaintiff entered into an agreement with Defendant, a printing
company "hold[ing] itself out a8 having special experti.e,
knowledge
and
skill
to
print magazine8
for
new..tand
di.tribution,"l pur8ua.\t to which Defendant was to print the
periodica18 for new88tand di8tribution over a three-year period.
In order to print the cover8 for the8e
magazine8, [Defendant] was provided with two
pieces of film per magazine. One of the film8
contained the graphics for the cover and the
other film contained the UPC code which was to
be placed on the cover,2
Defendant inadvertently failed to print the bar code. on the
periodical cover8, without 8uch code8, the magazine. could not be
.old at newsstands, After discovering the error, Defendant failed
to delay di.tribution of the periodicals to facilitate correction
of the problem,
Plaintiff 8uffered Hnancial 1088e8 in the form of reduced
.ales a8 well a8 expen8e8 a880ciated with printing and affixing to
the periodica18 uubstitute bar code 8ticker8,
Count I of
Plaintiff'8 complaint allege8 that Defendant knew or .hould have
known that the periodical8 could not be sold without bar code., and
1
Plaintiff's Complaint, paragraph 4,
Id" paragraph 8,
2
2
NO, 95-6238 CIVIL TERM
that Defendant'. "negligence and careleuneBB'" in failin9 to print
bar code. on the magazineB and failing to act upon discovery of the
error reBulted in damageB to plaintiff in exceBB of $20,000,00.
Count II allege. that Plaintiff waB known to be relying upon
Defendant'. .kill, knowledge and experience in printin9 the
1llA9azines,
It avers that in failing to print the bar code.
Defendant breached an implied warranty of merchantability and an
implied warranty of fitness for a particular purpose, resultin9 in
damage. to Plaintiff in excess of $20,000,00,
Defendant's preliminary objection in the nature of a demurrer
contends that "Pennsylvania does not recognize a cause of action
.oundin9 in ne9ligent breach of contract, "C It contends further
that "pure economic injury is not compensable under a ne91igence
theory, "5
DISCUSSION
Statement of law, The standard for review of a demurrer to a
complaint has been expresBed as follows I
Preliminary objections in the nature of a
demurrer will only be sustained in cases which
are clear and free from doubt, that is, where
it appears with certainty that the law will
not permit recovery, In makin9 thiB
determination, a court will consider all well-
Id" para9raph 17,
C Preliminary Objections of Defendant Fry Communication.,
Inc., para9raph 4,
,
5
Id" paragraph 5,
3
..~\-_!
.., ....,...""^,'.",,.,. ,~">.
NO. 95-6238 CIVIL TERM
pleaded facts as
inferences which are
therefrom,
true, including any
reasonably deducible
Koren v, Board of Directors, ___ Pa, Commw, ___, ___ n.4, 661 A.2d
449, 451 n.4 (1995) (citations omitted),
"The test ,.. is not whether the applicable law is clear and
free from doubt .", II Firing v, Kephart, 466 Pa, 560, 563, 353
A.2d 833, 835 (1976),
The role of the court in ruling on preliminary
objections in the nature of a demurrer is to
determine whether or not the facts pleaded are
legally sufficient to permit the action to
continue. This is so whether the legal
determination to be made is relatively simple
or relatively difficult,
Id. at 563-64, 353 A,2d at 8351 see 5 standard pennsylvania
Practice 525:70, at 181 (1993).
The distinction between tort and contract cause. of action i.
both logical and of practical importance. First, the actions have
traditionally served different purposes:
Although they derive from a common origin,
distinct differences between civil actions for
tort and contract breach have developed at
common law. Tort actions lie for breaches of
duties imposed by law as a matter of social
policy, while contract actions lie only for
breaches of duties imposed by mutual
consensual agreements between particular
individuals,
Iron Mountain Sec, Storage Corp, v, American special ty Foods, Inc"
457 F, Supp, 1158, 1165 (8,0. Pa, 1978),
Second, different measures of damages have usually been
4
NO, 95-6238 CIVIL TERM
associated with contract and tort claims, See Grode v, Mutual
Fire, Harine and Inland Ins, Co" 154 Pa, Commw, 366, 623 A,2d 933
(1993). Relegation of a type of action to tort or contract often
reflects a determination as to where, in a certain type of
relationship, the risk of a certain type of loss should fall. See,
e.g., REM Coal Co" Inc. v, Clark Equipment Co" 386 Pa, Super,
401, 563 A.2d 128 (1989) (purely economic loss in products
liability case arising out of physical damage to product only held
to give rise to contract action only),-
.
An example of this kind of analysis is contained in REM:
First, tort law's concern for the protection
of the public is greatly reduced in such
circumstances. Since consumers of the product
can insure against the loss of the product and
its use, there is no need to provide them with
the special protection of tort remedies,
Second, damage to the product is "most
naturally understood as a warranty claim."
Warranties aim at maintaining product value
and quality, which is all a consumer loses
when the product is defective in a manner that
results only in economic losses, Finally,
warranty law is suited to economic loss cases
because in such cases, the parties have the
opportunity to have set the terms of their
agreement regarding product value and quality
in advance. The manufacturer may provide
limited warranties and reduce the price, or
give full warranties at a higher cost. The
customer has the ability to negotiate over the
terms of the bargain, If the product does not
perform according to the agreement, the
consumer is made whole by contract damages as
limited by the terms of the agreement, This
limitation of liability is an entirely
appropriate brake on the manufacturer's
liability in a case involving only the loss of
the bargained for product,
REH Coal Co" Inc, v, Clark Equipment Co" 386 Pa, Super, 401, 410-
11, 563 A,2d 128, 132-33 (1989) (citations omitted),
5
,
,.
NO, 95-6238 CIVIL TERM
Third, different collateral consequences have developed as a
result of, and are dependent upon, the judicial distinction between
tort and contract liability
e,g" contractual liability
exclusions in commercial insurance policies, See generally Hertz
Corp. v, Smith, 441 Pa, Super. 575, 657 A.2d 1316 (1995),
The Pennsylvania Supreme Court has cautioned against
authorizing tort recovery for contractual breaches I
To permH a promisee to sue hiB promi!lor
in tort for breaches of contract inter Be
would erode the usual rules of contractual
recovery and inject confusion into our well
settled forms of actions, Most courts have
been cautious about permitting tort recovery
for contractual breaches !lnd we are in full
accord with this policy. The methods of proof
and the damages recoverable in actions for
breach of contract are well established and
need not be embellished by new procedures or
new concepts which might tend to confuse both
the bar and litigants,
Gla.er v, Chandler, 414 Pa, 304, 308-09, 200 A,2d 416, 418 (1964)
(citation omitted); Bee Health BenefitB Management, Inc, v. Pilot
Air Freight, Inc" No, 94-7084 Civil Term (Cumberland Co, July 14,
1995) (Hoffer, J,),
Notwithstanding this admonition, it must be recognized that
the reluctance of courts to permit tort recovery for contractual
breaches II is not ironclad, II
Grode v, Mutual Fire, Marine and
Inland Ins, Co" 154 Pa, Commw, 366, 370 n.3, 623 A,2d 933, 935 n.3
(1993), It can not be said, for instance, "that tort claims can
never arise from contractual service relationships." Id. at 371,
6
HO. 95-6238 CIVIL TERM
623 A.2d at 936 (emphasis added).'
A good general rule on this subject appears to the court to
have been provided by the Superior Court in Bash v, Bell Telephone
Co., 411 Pa, Super, 347, 601 A,2d 825 (1992)1
[I] t is po..ib1e that a breach of contract
also gives rise to an actionable tort. To be
construed as in tort, however, the wrong
ascribed to defendant must be the gist of the
action, the contract being collateral. A
claim ex contractu cannot be converted to one
in tort simply by alleging that the conduct in
question was wantonly done,
Id, at 355-56, 601 A,2d at 829 (citation omitted) (emphasis
omitted) ,
In Bash, the Superior Court upheld a lower court's dismiss.l
of . negligence count against a company which omitted plaintiff's
advertisement from a phone book, "The obligations of the parties
in the instant dispute are a matter of private contract law," the
Court stated, Id. at 356, 601 A,2d at 829. The court discerned no
need to implicate "the larger social policies embodied in the law
of torts." Id. at 357, 601 A.2d at 830,
In the case sub judice, several factors support Defendant's
position that Plaintiff's action should not proceed on a negligence
b.sis, First, the wrong ascribed to Defendant - failure to print
, For instance, "special non-contractual duties of
professionals such as doctors, lawyers and architects enforced by
tort law were created in part to make up for the lack of
sophistication and bargaining power of those seeking these
professional services." PPG Industries, Inc, v. Sundstrand Corp.,
681 F, Supp. 287, 290 (W,D, Pa, 1988),
7
i'"'
NO. 95-6238 CIVIL TERM
a bar code supplied by a publisher on periodical covers and failure
to facilitate correction of the problem when it was discovered - is
a matter involving the parties express or implicit understandings,
the contract between them can not be characterized as merely
"collateral" to the alleged wrong,
Second, the duty allegedly breached by Defendant wae not one
imposed by law as a matter of social policy, Finally, the measure
of damages applicable to contract actions seems more appropriate
than that applicable to tort actions in a case such as this arising
out of an agreement between a publisher and printer, involving no
physical harm, property damage or injury other than economic loss.
Por theee reasons, the following order will be entered I
ORDER OF COURT
AND NOW, this 3ruJ..,; day of April, 1996, after careful
consideration of Defendant's preliminary objection in the naturs of
a demurrer, and for the reasons stated in the accompanying opinion,
the preliminary objection is SUSTAINED and count I (negligence) of
Plaintiff's complaint is DISMISSED,
PLAINTIFF is GRANTED 20 days within which to file an amended
complaint if it cares to do so to supplement its contractual claim,
Defendant shall have 20 days from service of any such amended
complaint, or 20 days from the expiration of the time for filing an
amended complaint if none is filed, to file a responsive pleading,
BY THE COURT,
,al !), ~--'-J- c/t:J~
J, Wesley Oler, dr" J,
~.
1./<.,.,
8
NO. 95-6238 CIVIL TERM
Jennifer A, Kline, Esq,
Paul W, Minnich, Esq,
BARLEY, SNYDER, SENFT' COHEN
100 Bast Market Street
P.O, Box 15012
York, PA 17405-7012
Attorneys for Plaintiff
Thsodore A. Adler, Esq,
RBAGBR , ADLER, P.C,
2331 Market Street
Camp Hill, PA 17011
and
Robert A. Swift, Esq,
Deni. F. Sheils, Esq,
KOHN, SWIFT' GRAF, P,C.
2400 One Reading Center
1101 Market Street
philadelphia, PA 19107-2924
Attorneys for Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
UFETIME PERIODICALS, INC.,
Plaintiff
: No. 95-6238 Civil Tenn
vs.
FRY COMMUNICATIONS, INC.,
Defendant
REPLY TO NEW MATTER AND
ANSWER TO COUNTERCLAIM
REPLY TO NEW MATTER
32-41. Denied. The averments of paragraphs 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41
constitute conclusions of law to which no response is required and are therefore deemed denied.
42. Denied. The avennenlS of paragraph 42 constitute conclusions of law to which no response
is required and are therefore deemed denied. To the extent a response may be required, it Is specifically
denied that any amount is due and owing from Plaintiff to Defendant.
WHEREFORE, Plaintiff, Lifetime Periodicals, Inc., demands judgment against Fry
Communications, Inc., as set forth in its Complaint.
ANSWER TO COUNTERCLAIM
Count I - Breach of Contract
43. Plainlilf incorporaleS by reference as though set forth in full the avalllelltl of paraanpbI
1 through 31 of its Amended Complaint and paragraphs 32-42 above.
JAKi30242.llOmll6
44. Admitted in part; denied In part. It is admitted that in or about the late lummer or
fall of 1993 Fry and lifetime entered into an agreement whereby Fry agreed to print certain publications
for Lifetime. It is denied that the Proposal dated December 17, 1993, attached u Exhibit A to
Defendant's Counterclaim constitutes the agreement between the parties, and to the contrary it is
averred that the agreement entered inlo by the parties consisted of oral communications and the course
of dealing between the parties.
45. Admitted. It is admitted that Fry printed three issues each of "Money Lines" and "Fell's
U. S. Coins."
46. Denied. After re~nable investigation Plaintiff Lifetime is without knowledge or
information sufficient 10 form a belief as to the truth of the averments of paragraph 46 of Defendant
Fry's Counterclaim; the same are therefore denied and strict proof thereof is hereby demanded.
47. Denied. By virtue of Fry's violation of the agreement between the parties as set fonh
in Plalntiff's Complaint, no sums are due to Fry from Lifetime.
Count II - Account Stated
48. Plaintiff incorporates by reference as though set forth in full the avernietD of pII'III'lIIlbI
1 through 31 of its Amended Complaint and paragraphs 32 through 47 above.
49. Denied. After reasonable investigation Plaintiff Lifetime is without know\edp or
information sufficient to form a belief as to the truth of the averments of paragraph 49 of DefendaDt
Fry's Counterclaim; the same are therefore denied and strict proof thereof is bereby ~"""",
SO. Denied. To the contrary, on or about April 28, 1994, Plaintiff notified Det'eDduIl
of ita breach under the agreement and sought reimbursement of its damages.
2
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JAKI3024UiOS2196
51. Denied. To the conttary, the sums due Plaintiff on account of Def'endam Fry's violations
of the panlca' agreement exceed the sum of $2,279.82.
WHEREFORE, Plaintiff, Ufetlme Periodica1I,lnc., demandsjud&ment in Ita favor IIIIlqainst
Defendant, Fry Communications, Inc., plus interest and COlts of suit.
NEW MATTER
52. Count I of Fry's Counterclaims falls to state a cause of action upon whlch relief may
be granted.
53. The relief sought by Defendant Fry in subparagraph (c) of ita ad damN.m clauae Ia
prohibited by ststute and/or case law.
WHEREFORE, Plaintiff, Ufetime Perlodicals, Inc., demandsjudament lnits favorlllllllp'-
Defendant, Fry Communications, Inc., plus interest and costs of suit.
SNYDER, SENFf .t COHEN
M~/
r A. Kline, Esquire
Su Court No. 65950
100 East MarIcet Street
P. O. Box 15012
York, Pennsylvania 17405-7012
(717) 846-8888
3
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I, Dolll1d I.enIII, PmId'Dl of Itlmt Perlodkal., Inc.. tbe PIalDdt1' btnIu, UIll u IUCh
otlk:lr bt\JII duly IUlborIztd to do '0, v Ify that die facti set lonh in tbIllon.olDl Rlply to New
Matter UIll Amwer to CounterCllIm with w Matter.... trIIt UIll~~ to till bat of my lmowledp,
iDIormatlon UIll belief. 1 undentlllll thsl false .wcmen1I benlln .... IIIIde IUbJect to tbe peIII1da
of 18 PI.C.S.A. f49(M nl.tiq to UIIIW fals1flcatlOD to &II1IIDdtIe..
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No, 95-6238 Civil Term
LIFETIME PERIODICALS, INC.,
Plaintiff/CounterClaim
Defendant,
v,
FRY COMMUNICATIONS, INC"
Defendant/Counterclaim
Plaintiff,
DIFIHDANT/COUNTERCLAIK PLAINTIFF
FRY COKKUHICATION8. INC,'B REPLY TO NIW KATTIR
Defendant/Counterclaim Plaintiff Fry Communications,
Inc, ("Fry") hereby replies to the New Matter of
Plaintiff/CounterClaim Defendant Lifetime Periodicals, Inc,
("Lifetime") as follows:
52. Denied, The allegations contained in this
paragraph constitute conclusions of law to which no response is
required,
53. Denied. The allegations contained in this
paragraph constitute conclusions of law to which no response is
required,
WHEREFORE, defendant/counterclaim plaintiff Fry
respectfully requests that the Court enter judgment in its favor
and against plaintiff/counterclaim defendant Lifetime as follows:
(a) dismissing with prejudice the claims asserted
against Fry in the Amended Complaint;
(b) entering judgment for Fry and against Lifetime on
l
Fry's counterclaims;
(c) awarding Fry the costs and disbursements of this
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suit, including prejudgment interest and reasonable attorney's
tees; and
(d) granting Fry Buch other relief as the Court deems
just and proper,
DATE: June
13, 1996
R..P.C'f~Ubmi"."
The ore A. Adler, Esqu re
REAGER & ADLER, P.C,
2331 Market street
Camp Hill, PA 17011
(717 763-1383
BY:
BY:
Ro ert A, Sw ft,
Denis F, Sheils, Esquire
KOHN, SWIFT & GRAF, P,C,
2400 One Reading Center
1101 Market Street
Philadelphia, PA 19107-2924
Attorneys For
Defendant/Counterclaim
Plaintiff Fry Communications,
Inc,
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a.D ~, thi. 13th d.y of Jun., 1996, I h.r.by v.rify that I
have Cllluaed e true and corr.ct copy of the foregoill9 dOCUMnt to be
pIeced in the U,8, ..il, fir.t c1..., po.taq. pr.paid and .ddr....d
a. follow.:
Jennifer A. Klin., B.q.
Paul W, Minnich, Z.q,
Barley, Snyd.r, Senft , Coh.n
100 B..t Market Str.et
P.O, Box 15012
York, PA 17405-7012
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LIFETIME PERIODICALS, INC.,
Plaintiff
No. 95-6238 Civil Term
vs.
FRY COMMUNICATIONS, INC.,
Defendant
COMPLAINT
? r I
AND NOW,this '), day of November, 1995, comes the Plaintiff. Lifetime Periodicals,
Inc., by its allomeys, Barley, Snyder, Senft & Cohen, and files the following Complaint:
1. Plaintiff, Lifetime Periodicals, Inc. (hereinafter referred to as "Lifetime"), is a Florida
corporation with an address for purposes of doing business at2131 Hollywood Boulevard, Hollywood,
Florida 33020-6750.
2. Defendant, Fry Communications, Inc. (hereinafter referred to as "Fry"), is a Pennsylvania
corporation with an office for purposes of doing business at 800 West Church Road, Mechanicsburg,
Pennsylvania 17055.
3. Plainliff is a magazine publisher and, in 1994, published magazines which included
"Money Lines" and "Fell's U.S. Coins."
4. Fry is a prinling company that holds itself out as having special expenJse. knowledge
and skil1 to prinl magazines for newsstand distribution.
S. In Augus11993, Lifetime and Fry enlered into an agreement for the printing of "Money
Lines" and "Fell's U.S. Coins."
.
JAKlI809'lI1219'
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,
6. Pursuant to the agreement, Fry was to prinl quanerly issues of Ihe aforementioned
magazines for Plaintiff, for newsstand dislribution over a Ihree year period.
7. On or about April 27, 1994, Fry prinled one issue of "Money Lines" and one issue
of "Fell's U.S. Coins" for Plaintiff.
8. In order 10 print the covers for these magazines, Fry was provided with two pieces
of film per magazine. One oflhe films contained the graphics for the cover and the other film contained
the UPC code which was to be placed on the cover.
9. Although Fry was provided wllh Ihe film containing Ihe UPC code, Fry negligently
10. Magazines for newsstand distribution such as "Money Lines" and "Fell's U.S. Coins"
failed to print the UPC code on the magazine covers.
cannot be sold without UPC codes.
11. After Fry printed the magazines withoUI the UPC code, Fry forwarded the magazines
to Clark Distributing Company, who discovered the error and notified Fry.
12. Upon being informed oflhe problem, Fry negligently failed t(j lake a!lYact~l.mect
.-.... " -- -.,- '-./
the problem or to prevent distribution of the magazines 10 approximalely three hundred wholesalers.
13. As a result of Fry's conduct, Plainliffhas suffered loss, harm and damage which consists
of the cost to print stickers containing the UPC code, the coslto mail the UPC stickers to wholesalers
and the labor cost associated with affixing Ihe UPC stickers 10 the magazines. In addition, Plaintiff
has suffered losl sales and lost profils as a result of Defendant's actions.
2
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JAKlI8095h 12195 '
COUNT I
LIFETIME PERIODICALS, INC. v. FRY COMMUNICATIONS, INC.
NEGLIGENCE
14. The allegations contained in paragraphs Ilhrough 12 are incorporated herein by 1~fl:.e.IICcld.
IS. As an experienced printer of magazines, Fry knew or should have known that the magazines
could not be sold without UPC codes being printed on them.
16. Fry owed a duty to Lifetime which Fry breached by failing to print UPC codes on
said magazines and by failing to take any action to prevent distribution of said magazines upon learning
that the UPC codes had not been printed on the covers.
17. As a direct and proximate result of Fry's negligence and carelessness, Plaintiff has
sustained damages in an amount in excess of $20,000.00 as described above.
WHEREFORE, Plaintiff respectfully requests this Counenter judgment in its favor and ...Iqq
Defendant in an amount in excess of $20,000.00, plus interest and costs of suit.
COUNT II
LIFETIME PERlODCALS, INC. v. FRY COMMUNICATIONS, INC,
BREACH OF WARRANTY
18. The allegations colllalml in paragrapm IIhrough 17 are incuporalrd berdn by ....-..d.
19. Fry is a printer that holds itself out as having special expertise, Imowledae and IkUl
to print magazines for newssland dlslribullon.
20. Fry knew the purpose for which it was printing the magazines for Plaintiff.
3
JAKII809,fIl119' .
., ..
21. Fry knew that Plaintiff was relying onFry's skill, knowledge and experience in printing
the magazines.
22. By failing to print UPC codes on the cover of the magazines, Fry breached the implied
warranty of merchantability,
23. By failing to print UPC codes on the cover of the magazines, Fry breached the implied
warranty of fitness for a particular purpose.
WHEREFORE, Plaintiff respectfully requests this Court enter judgment in its favor and against
Defendant in an amount in excess of $20,000,00, plus interest and costs of suit.
BARLEY, SNYDER, SENFT & COHEN
By: {/ l;;;/J.!:f;;~
Supreme Court No. 65950
100 East Market Street
P. O. Box 15012
York, Pennsylvania 17405-7012
(717) 846-8888
4
JAKlI80951t 12295 .
CERTIFICATE OF SERVICE
2'}1.,1
AND NOW, this t day of November, 1995, I, Jennifer A, Kline, Esquire, herebycenify
that I have served the within Complaint by depositing Ihe same in the United Slates mail, postage
prepaid, at York, Pennsylvania, addressed as follows:
Fry Communications, Inc.
800 West Church Road
Mechanicsburg, PA 17055
BARLEY, SNYDER, SENFT & COHEN
By 11 J--_tLf/..///
'kkifer A. Kline, Esquire
Supreme Court No. 65950
100 East Market Street
P. O. Box 15012
York, Pennsylvania 17405-7012
(717) 846-8888
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the UPC code, mail the UPC stickers to wholesalers and pay individuals to affix the UPC stickers
to the magazines.
Plaintiff asserts two causes of action against Defendant-negligence and breach ofwarranly.
Contrary to Defendant'l assertion in its brief, the negligence cause of action is not one of nonfeasance
but rather one of misfeasance. That is, Plaintiff asserts Fry was negligent in performing its duties
to Plaintiff.' Defendant filed Preliminary Objections to Plaintiffs Complaint asserting that Plaintiff
may not proceed on Ihe negligence theory. Plaintiff files this brief in response to Defendant's Preliminary
Objections .
0, COUNTERSTATEMENT OF ISSUE PRESENTED
A. Whether Plaintiff has stated a cause of action in negligence against Defendant?
Suggested answer in the affirmative.
m, ~GIIMENT
A., Pllllntilf hulltated a rause of action 10 -II~ ......Ina Defeadllnt,
A preliminary Objection in the nature of a demurrer challenges the pleadings u faUlDa
to set forth a cause of action upon which relief can be granted under any theory of law. BinlwllqlH!l'
v. Levv, 311 Pa.Super. 41, 457 A.2d 103 (1983). A preliminary objection asserting legallnsufflcleDcy
of a pleading admits all well-pleaded facts and all reasonable inferences. JCeirs v, Weber Natlnnal
Stores. Inc., 352 Pa.Super. Ill, 507 A.2d 406 (1986). All doubts are to be resolved apinIt 1M
moving party by overruling the objection, Aelna ElectrQDlati~ Co. v. Jenkins, 335 PI.SUper. 283,
''The distinction between misfeasance and nonfeasance and the relevance to thillCtion
are discussed more fully in the argument section.
2
J.IlII_I01II96
In 1Wb, the court stated thaI in order to be considered a tort action, the wrong ascribed
to the Defendant must be the gist of the action, rather than the breach of the contract. The court
held that the Plaintiff could not pursue a negligence Iheory since "[t]he parties' obligalions are defined
by the terms of the contract and not by Ihe larger social policies embodied in the law of torts." 1Wb,
411 Pa,Super at 356-57, 601 A.2d at 829-30. As discussed more fully beloW,the court in IWh was
only dealing with a situation where there was a written conlract between the parties that defined their
obligations. In~, the Superior Court followed IWb and stated that the difference between contract
and tort actions is that "the latter lie from the breach of duties imposed as a matter of social polley
while the former lie for the breach of duties imposed by mutual consensus." Ill., 663 A.2d at 757.
Importantly, those courts that have fo\1owed Dub, have all involved written contracts
that have defined the parties' obligations. In B.ub, the parties entered into a written contract on May
13, 1990 and it was this contract that the ('ourt held governed the parties' relationship. In~.
the parties entered into a nullllng home consulting agreement. SigniflC8lll1Y. in ~cDoIc v. Bell T~~
Co, of Pa" ___ Pa.Super. ---,656 A,2d 933 (1995), where the contract between the partIet expired
and was not renewed, the Court permitted the plaintiff to proceed on a negligence theory since lID
contract governed the relationship and set forth the parties' obligations.
In the instant case, Plaintiff has not asserted a cause of action for breach of contraCt
and has not a\1eged that there was a written contract between the parties. Thus. takinI u trUe the
allegations in Plaintiffs Complaint, there are no allegations that there il a writtencontraet tbatdcfinel
the terms of the parties' obligations. ~,lt.l.., B.ub. As in McDole, the reuonlna in IIIIb is
inapplicable; and Plaintiff is permitted to pUlllue a negligence cause of action.
Moreover, it is not even clear whether Pennsylvania courts IIl:lmowJedae tbe ......k:daG
on pUlllulng a negligence theory, The Supreme Court has not addressed the issue. In n.n..IA v. ....
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fire Ins, Co" 154 Pa. Commw. 366, 623 A.2d 933 (1993), the Commonwealth Court thoroughly
discussed the state of the law and refused to dismiss a negligence cause of aclion finding that "there
is simply too much Pennsylvania case law allowing tort recovery in contractual relalionships to allow
a molion to dismiss a claim. . . ." 111., 623 A.2d at 936. !JrQlk is mosl analogous to this case since
both involve the rendition of professional services, The court in 0I2lk stated that "a tort claim in
a contractual relationship for services should not be dismissed at an early stage of proceeding prior
to the production of evidence. !JrQlk, 154 Pa,Commw. 366,623 A,2d at36. Thus, the Pennsylvania
appellate courts are split as to whether there is a restriction under Pennsylvania law in pursuing a
negligence theory.
Defendant also asserts that Plaintiff may not maintain a negligence claim since Plaintiff
has not "suffered any legally cognizable harm or injury." Defendant contends that because Plaintiffs
are seeking only economic damages, they may not proceed on a negligence theory. Defendant cites
to REM Coal Co.. Inc. v, Clark EoulpmentCo., 386Pa, Super 401 , 563 A.2d 128 (1989), in support
of this proposition. REM Coal is inapplicable in this situation, amM Coal was a product liability
case; its holding is limited to a product Iiabilily case. The court in REM Coal held that there is DO
product liability cause of action, either in negligence or strict liability , when only the product itself
is damaged and, therefore, the injury is purely economic. As the court In REM discusses, "the goals
of tort theories of recovery are not implicated in a product malfunction case" where only the product
Itself is damaged, Id.. 563 A, 2d at 129. The court discusses in detail the rationalcfor such al1m1tstlon
in the Droduct malfunction selliOlz.
REM Coal does not apply and has not been extended to a case, such as this one, where
the plaintiff is alleging that the defendant was negligent in rendering a profeslional service. gag
v. Mutual Fire Insurance Co" 154 Pa, Commw. 366, 623 A,2d 933 (1993). The court In gag
5
JIlIIIOiIIOIZ116
CERTIFICATE OF SERVICE
AND NOW, this 28th day of February, 1996, I, Jennifer A. Kline, Esquire, hereby certify
that I have served the within Brief in Opposilion to Defendant's Preliminary Objeclions by depoliting
the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed u follows:
Theodore A. Adler, Esquire
Reager &. Adler, PC
2331 Market Street
Camp Hill, PA 17011-4642
,
BARLEY, SNYDER, SENFT &. COHEN
ByQ...tLJAAL
Supreme Court No. 65950
100 East Market Street
P. O. Box 15012
York, Pennsylvania 17405-7012
(717) 846-8888
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I. .ulIOa'1' O. 1'1" .a8LIIlIIlUY OBJ8C'l'IO.'
Defendant, Fry cOllllllunication., Inc" ("Fry") re.pectfully
.ubait. thi. memorandUll of law in .upport of it. preliminary
objection. to Count I of the Complaint,
Fry's preliminary
objection. pre.ent the i..ue. a. to whether a cau.e of action for
ne;ligence can be a..erted where a contract govern. the
relation.hip of the partie. and whether pure economic injury i.
compen.able under a negligence theory,
I,
FACTS
For purpo.e. of thia motion only, the allegation. of
plaintiff'. co.plaint, taken a. true, allege the following,
plaintiff, Lifeti.e Periodical., Inc. ("Lifetime") and
Fry entered into an agreement in August, 1993 for the printing of
two magazine. published by Lifetime I "Money Line." and "Fell'.
U,S, Coins", complaint !5, Pursuant to thia agree.ent, Fry wa. to
print quarterly issue. of these magazine. for new..tand
di.tr.ibution over a three year period, ~ !6, In order to print
~
the cover. tor the.. magazin.., Fry was provided with two pi.ces ot
tila per lIagadne, One ot the tilm. contained the graphic. tor the
cover and the other tila contained the UPC code which was to be
placed on the cover, IlL. '8, Magazines tor newsstand distribution
.uch as "Money Lines" and "Fellls U,8, Coins" cannot be sold
without UPC codes, IlL. '10,
When Fry printed one ot the issues at "Money Lines" and
on. at the is.ue. at "Fell'. U,8, Coins", it tailed to print the
UPC code on the lIagazine covers, IlL. "7 and 9, Atter Fry printed
the lIagazines without the UPC code, Fry torwarded the magazines to
Clark Distribution Company, who discovered the error and notified
Fry, IlL. '11, upon being informed of the problem, Fry failed to
take any action to correct the problem or to prevent distribution
at the lIagezine. to approxillately three hundred whole.aler., IlL.
'12, A. a result at Fry'. conduct, Litetime has allegedly suttered
economic losses, including lost sales and lost profits, IlL. '13.
Litetime's complaint asserts two causes of action. Count
I alleges negligent nonfeasance, Count II alleges breach of the
implied warranties of merchantability and fitness for a particular
purpose,
II,
ARGUMENT
Count I of the complaint alleging negligent nonfeasance
on the part at Fry should be dismissed pursuant to Pa, R, civ, p,
1028 (a) (4) because it tails to state a claim upon which relief
-2-
.'
can be granted, Pennsylvania does not recognize a cause of action
for negligent breach of contract, particularly when it is in the
nature of alleged negligent nonfeasance, Lifetime 6imply cannot
expand its breach of contract claim into a tort claim,
Furthermore, pure economic injury is not compensable under a
negligence theory,
1, In Light of Their Contractual Relationship,
Lifetime Cannot state a Claim in Negligence
Aaain.~ Frv
Lifetime's negligence claim is a transparent attempt to
transform what must be, if it is anything, a claim sounding in
contract into a claim sounding in tort,
Lifetime's complaint
alleges an agreement between Lifetime and Fry, Complaint !5, In
light of this contractual relationship, Lifetime cannot state a
claim in negligence since the law is clear that the law of
contracts, not tort, governs the parties' obligations to one
another in respect to conduct covered by a contract between them,
Glazer v, Chandler, 414 Pa, 304, 200 A,2d 416, 418 (1964),
Principles of negligence do not come into play and any alleged
"negligence" of Fry is thus irrelevant, particularly so when the
allegations are in the nature of negligent nonfeasance, 1 WlX
CorD, v, Prime LeasinG, Inc" 988 F,2d 433, 439-40 (3d cir, 1993);
ERCO ImDort~rs v, Halsabrunn, 500 F, supp, 152 (E,O, Pa, 1980)
(Lord, J,); Iron Mountain Security storaGe CorD, v, American
1 specifically, Lifetime alleges that Fry negligently
"fall[ed] to print UPC codes on [the] magazines and fall[ed] to
take any action to prevent distribution of said magazines upon
learning that UPS codes had not been printed on the covers,"
Complaint !16,
-3-
" ..
Snecialtv Foods. Inc" 457 F, Supp, 1158, 1166 (E,D, Pa, 1978);
Bash v, Bell Telenhone Co" 411 Pa, Super, 347, 601 A,2d 825, 829-
30 (1992); standard pineline coatina Co. v, Solomon' Teslovich.
~, 344 Pa, Super, 367, 496 A,2d 840 (1985), Accordingly, Count
I of the Complaint should be dismissed with prejudice,2
2, Lifetime's Negligence Claim Must Be Dismissed
Since, As a Matter of Law, It Has Not SUffered
Anv Leaallv Coanizable Harm or Iniurv
Lifetime's negligence claim must also be dismissed since,
as a matter of law, it has not suffered any legally cognizable harm
or injury.
The elements of a CQuse of action for negligence are:
(1) a duty; (2) a breach of duty; (3) a proximate causal connection
between the negligent conduct and the reSUlting injury; and (4)
actual 108S or damage, Moreno v, South Hills Health System, 501
Pa. 634, 642, N,J, 462 A,2d 680, 684, N,5 (1983); .u A1G
pittsburah National Bank v, Perr, 431 Pa, Super, 580, 637 A,2d 334,
336 (1994), Lifetime's complaint alleges, at most, pure economic
harm, ~ Complaint !13, Pure economic injury is not compensable
under any negligence theory, REM Cool Comnanv v, Clark Eauinment,
386 Pa, Super, 401, 563 A.2d 128 (1989) (en bane); Readv Foods
2 It should be noted that in Grode v, Mutual Fire Ins, Co"
154 Pa. Commw. 366,623 A,2d 933 (1993), the Commonwealth Court did
not, on preliminary objections, dismiss a tort claim based on
contract, This anomalous case is contrary to the decisions of the
Pennsylvania Supreme and Superior Courts and the federal courts
cited in the text, Furthermore, even the court in Grode expressed
serious misgivings about its decision and indicated that it may
very well decide otherwise later in the proceedings, 623 A,2d at
936,
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CIRTIFICATI OF 81RVICI
AND NOW, this 12th day of January, 1996, I hereby verify that
I have caused a true and correct copy of the foregoing document to
be placed in the United states mail, first class, postage prepaid
and addressed to plaintiff's counsel as follows:
Jennifer A, Kline, Esquire
Barley, snyder, Senft & cohen
100 East Market street
p,O, Box 15012
York, PA 17405-7012
A, Adler
to"
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(tlIst be typewritten and subnitted in dUEl) j,.~te)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Ar9J'nent 0Jurt.
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CAPTION OF CASE
(entire caption /IIJIlt be stated in full)
LIFETIME PERIODICALS, INC.
(Plaintiff)
VB.
FRY COMMUNICATIONS, INC.
( Defendant)
No, 95-6238
CivU Term
19
1. State matter to be argued (i.e" plaintiff's llDtion far MW trial, defendant'.
dBrw:rer to ~laint, etc,):
Defendant's Preliminary Objections
2, Identify counsel who will argue case:
(a) far plaintiff:
Address:
Jennifer A. Kline, Esquire
Barley Snyder, Senft. Cohen
100 East Market st" p, O. Box 15012
York, PA 17405-7012
(b) for defendant:
Address: Theodore A. Adler, Esquire
Reager . Adler, PC
2331 Market Street
Camp Hill, PA 17011-4642
3. I will notify all parties in writing within hIo days that un. c:-. "-
been listed for argunent,
4, Ar'gunent 0Jurt Date:
March 6, 1996
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Doted: January 17, 1996.
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JAKlII09'IOI1896
CERTIFICATE OF SERVICE
AND NOW, this Ju. day of January, 1996, I, Jennifer A. Kline, Esquire, hereby certify
that I have served the within Praecipe by depositing the same in the United States mail, postage prepaid,
at York, Pennsylvania, addressed as follows:
Theodore A. Adler, Esquire
Reager & Adler, PC
2331 Market Street
Camp Hill, PA 17011-4642
BARLEY, SNYDER, SENFf & COHEN
Bye] (JA,Ak
1eiiiIifer A. Kline, Esquire
Supreme Court No. 65950
100 East Market Street
P. O. Box 15012
York, Pennsylvania 17405-7011
(717) 846-8888
~"HEHlIT"; IiETlJlitl - Ii EI il 11.1.1,
CASE NOI 199s-mG2JB r
COMMONWEALTH OF PENtlSYLVANIAI
COUNTY OF CUMBERLAtlP
bIFETUiIL.EfJ!1OJ)I~:"l,~- J W
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ERY CO.!:!"UN_L';;!\TLOllli-.)H~:_--
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CUMBERLAtlD CDunt.y, I','nllnylvuniil. who !lpinq dilly "wor-n nccDrdtn~'
to law. ,"'Y3. ltw wtl.hlll WJUI_QL_~!.l_I1!1..9.11~_..--------
upon _.fltLC9!1!1ill!.I..\::AUQJJs~lU~: ----.. -------- P'-
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t1ECHANICSBUR.Q., I:'A 170~'~1______ .__ _______________________. I~VJ,!!1j::R_L,f\llP
County, P<,nnf;Y I ""n1 '" by hand I 11'.1 1.' t1fl_1i'i .JLCHl.E!1I.SL rQtITl1_Q1_L.J::JUt!J)
A[JULT III CHARGE _________.___
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a true and at t.""bod copy "f th,,_!lnJ.'[--gL,~Wj1'!prls,-----------..-.----------.
and at t.hE' ",,",'" U",p dHer:'UnlJ U!.U_ ;jtlynll'Jn to t.he cont.,'nt.o thereof.
Sheri!f's COSlSI
POCI'.E'lt ng
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
LIFETIME. PERIODICALS, INC.
2131 Hollywood Boulevard
Hollywood, FL 33020-6750
plaintiff
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FRY COMMUNICATIONS, INC,
800 West Church Road
Mechanicsburg, PA 17055
Defendant
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PRABCIPB FOR WRIT OF SUNKORS
TO THE PROTHONOTARY:
Issue Writ of Summons against the above named
Defendant, Fry communications, Inc,
Issue the Writ and deliver to Sheriff for .ervice.
BARLEY, SNYDER, SENFT' COHEN
B /7/ _ a J./~
)'{JJ"~ifer A, n~:;
Supreme Court No, 65950
Attorneys for Plaintiff
100 East Market Street
p, 0, Box 15012
York, PA 17405-7012
(717) 846-8888
IN 'I'IIE COUll'l' OF cOMMOtl PLEAS OF CtJMIlERLAllD COUNTY, PENNSYLVANIA
Cl VI r. AC'I'TON- LAW
LIFE'l'lME PER10llICALn, TIle.
2131 lIollywood IlO1l1nVilnl
11011 ywood, Fl. ]:l o;W-(,'1',O
P]alntlll
No.
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FRY COMMU1HCA'1'10W;, IlIC.
800 West Church HO;Jd
Mcchanlcsblll"fJ. I'A I'IO"!',
Defend.lllt
ny
WRIT OF SUMMONS IN A CIVIL ACTION
TO: FRY COM~lUNICA'l'ION:;, INC.
BOO \~eBt Church HOild
Mechnn iCBburq, I'A 1'I0~~,
YOU ARE IIEHEII\' NO'I'lFlED '1'IIA'I' TilE A\lOVE NAMED
COMMENCED AN AC'l'lON '\(~A I W;'l' \'OU.
IJ\WHENCE E. \~ELKER,
I'IW'I'IIONOTARY OF CUMBER
Dated: ( (,,( ,J/.i.Yf S------
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IN THE COURT OF COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LIFETIME PERIODICALS, INC"
Plaintiff.,
No, 95-6238 civil Term
,
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PRY COMMUNICATIONS, INC"
Defendant.
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..ILIIlIDaY OIJ.C'l'IOII. O.
DDmm._ ftY il!nMMmlICA'1':rOIl.. :rile.
Defendant, Fry communications, Inc., by and through it.
under.igned counsel, hereby preliminarily objects to the
Complaint, pur.uant to Pa, R, Civ, p, 1028, on the following
ground.:
1, Count I of the Complaint, alleging negligent
nonfea.ance, should be dismis.ed pursuant to Pa. R, Civ, P.
1028(a)(4) because it fail. to state a claim upon which relief
can be granted,
2, Plaintiff alleges in paragraph 5 of the Complaint
that it "entered into an agreement" with defendant for the
printing of two magazines, Count II of the Complaint allege.
that defendant is in breach of the implied warranties of
merchantability and fitness for particular purpose, Complaint ii
22 and 23,
3, Count I of the Complaint alleges negligent
nonfeasance, Specifically, plaintiff alleges that defendant
negligently "fail[ed] to print UPC codes on [the] magazine. and
fail[ed] to take any action to prevent distribution of said
magazines upon learning the UPC codes had not been printed on the
...
.
...
covers," Complaint, 16, Plaintiff alleges that these magazines
could not be sold without these UPC codes, 14., 10,
4, Plaintiff's negligence claim must be dismissed
since Pennsylvania does not recognize a cause ot action sounding
in negligent breach of contract, Plaintiff cannot expand its
breach of contract claim into a tort claim,
5. Plaintiff's negligence claim must also be
dismissed since, as a matter of law, it has not sutfered any
legally cognizable harm or injury, Plaintiff alleges that it has
suffered merely economic damages, However, pure economic injury
is not compensable under a negligence theory,
WHEREFORE, defendant respectfully requests that Count I
of the Complaint be dismissed against it, with prejUdice, and
that defendant be awarded its costs, attorney's tees, and such
other relief as the Court may deem appropriate,
DATE:
December/I, 1995
R....C.fUl~Y ....1.~
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Ro er A, Swi , hqu re
Denis F, Sheils, Isquire
KOHN, SWIFT' ORAl', P.C.
2400 One eadinq Center
1101 Ma et St t
Phi lade phia 11107-2124
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BY:
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BY:
,A er, re
GER , ADLER, P.C.
2331 Market Street
Camp Hill, PA 17011
(717) 763-1983
Attorneys For Plaintiff
Fry Communications, Inc..
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