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HomeMy WebLinkAbout02-4950Ronald M. Katzman, Esquire I.D. No. 07198 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire 1. D. No. 82340 GOLDBERG, KATZMAN & SHIPMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg PA 17108-1268 Telephone: (717) 234-4161 GREGORY SCOTT WHITEFORD, 1611 Dooley Road Whiteford, MD 21160, Plaintiff, V. ALLFIRST FINANCIAL, INC., 25 South Charles Street Baltimore, MD 21201, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Oa?- 996 -0 JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17103 (717) 249-3166 (800) 990-9108 NOTICIA Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17103 (717) 249-3166 (800) 990-9108 GOLDBERG, KATZMAN & SHIPMAN, P.C. By ?^' 4 -- ? Ronald M. Katzman, Es ire Attorney I.D. #07198 Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Date: ?? /? 6Z Ronald M. Katana,4 Esquire I.D. No. 07198 Therms J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire I. D. No. 82340 GOLDBERG, KATZMAN & SHIPMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg PA 17108.1268 Telephone: (717) 2344161 GREGORY SCOTT WHITEFORD, 1611 Dooley Road Whiteford, MD 21160, Plaintiff, V. ALLFIRST FINANCIAL, INC., 25 South Charles Street Baltimore, MD 21201, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA O NO. 02 Y f6 JURY TRIAL DEMANDED COMPLAINT Plaintiff, Gregory Scott Whiteford, by and through his attorneys Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Complaint: I. PARTIES 1. Plaintiff, Gregory Scott Whiteford, is an adult individual with a residence address of 1611 Dooley Road, Whiteford, Maryland 21160. 2. Defendant, Allfirst Financial, Inc., is a corporation organized under the laws of the State of Maryland, with a principal place of business and registered address at 25 South Charles 1 Street, Baltimore, Maryland 21201, and with places of operation where it regularly transacts business in Cumberland County, Pennsylvania. 3. Defendant, Allfirst Financial, Inc., is the successor-in-interest to Dauphin Deposit Bank and Trust Company ("Dauphin Deposit").' H. FACTS 4. Between January 1, 1982 and June 30, 1984, Dauphin Deposit offered individual retirement accounts ("IRA') with several different investment options. 5. One of the IRA investment options available between January 1, 1982 and June 30, 1984, which is the one selected by Plaintiff and the one at issue in this case, was an 18 month variable rate account which paid a rate of interest based upon the average yield of two-year Treasury Notes, automatically renewable and guaranteed to pay a minimum interest rate of 10% until the IRA was withdrawn fully or otherwise terminated by the account holder (hereinafter "Plaintiff's IRA'). Representatives of Dauphin Deposit, and promotional and advertising materials utilized by Dauphin Deposit to market its IRA offerings, clearly indicated that there would never be any type of maintenance fees or other charges levied upon account holders, such as Plaintiff. ' Dauphin Deposit was the plaintiff in a class action litigation involving issues similar to those presented in this case. The previous litigation was docketed in Cumberland County at No. 907-Civil-1994, and later appealed to the Pennsylvania Superior Court, which was docketed at No. 667-Harrisburg-1996. The case was later appealed to the Supreme Court of Pennsylvania. 6. In selecting Plaintiff's IRA, Plaintiff justifiably relied on the numerous promotional materials that were utilized by Dauphin Deposit that did not restrict or limit Dauphin Deposit's promise to pay a guaranteed minimum interest rate of 10% on the account. 7. The IRA agreement entered into by Plaintiff contained a Disclosure Statement. A copy of said Disclosure Statement has not been attached to Plaintiff's Complaint because it is in the possession of Defendant. However, a copy of the standard Disclosure Statement which accompanied IRA agreements similar or identical to Plaintiff's IRA is attached hereto as Exhibit A, Appendix A of which states: "The rate of interest paid on this account will be changed on the first business day of every month during the term of the account, and will be based on the average yield of 2 year U.S. Treasury Notes, as determined by the most recent auction of 2 year U. S. Treasury Notes. However. Dauphin Deposit Bank and Trust Company will guarantee a minimum rate of 10%. Interest paid is simple interest, credited on the quarterly anniversary date of the initial deposit. A statement of the account will be issued on each quarterly anniversary date of the initial deposit. This account is automatically renewable If you take no action within 10 days following a maturity date, principal and all accrued interest will be renewed for another 18 month term." (Emphasis added). 8. Plaintiff's IRA was automatically renewable for the convenience of the customer, meaning that the customer did not have to take action at the expiration of the 18 month term of the investment option to renew the account for an additional 18 month term at the variable and minimum rates described in Paragraph 5 above. 9. As set forth in the Disclosure Statement (Exhibit A), the numerous promotional and advertising materials that were utilized by Dauphin Deposit and the representations of employees and/or agents of Dauphin Deposit, Plaintiff was guaranteed a minimum interest rate of 10% on Plaintiff's IRA, including all automatic renewals thereof, until the account was fully withdrawn or otherwise terminated by Plaintiff. Dauphin Deposit reaffirmed its position with respect to Plaintiff s IRA in a letter to Plaintiff dated October 11, 1989, a true and correct copy of which is attached hereto as Exhibit B. 10. Because Defendant is the successor-in-interest to Dauphin Deposit, it has assumed the duties and responsibilities of Dauphin Deposit with respect to Plaintiffs IRA, which Plaintiff selected and purchased from Dauphin Deposit. 11. Dauphin Deposit had initiated a class action declaratory judgment action in the Cumberland County Court of Common Pleas in an effort to terminate its obligation to continue offering the 18 month variable rate account with a guaranteed minimum interest rate of 10%. 12. Members of the class brought a counterclaim requesting that Dauphin Deposit properly fulfill its obligation. 13. Plaintiff opted out of class participation. 14. Following commencement of the trial in Cumberland County, the parties reached a settlement of the underlying litigation, through which the terms of the bank's obligations pertaining to the variable rate account were altered. 4 15. Since Plaintiff was not a member of the class, the settlement was not binding on him and did not interfere with his right to receive the 10% minimum guaranteed interest rate on Plaintiffs IRA, and he continued receiving the guaranteed interest rate until October 12, 2000. 16. In a September 27, 2000 letter addressed to Plaintiff, Defendant stated, inter alia, the following: "On October 12, 2000, your 18 Month Variable Rate Account #8-700-024- 0480001 in the amount of $115,761.80 will mature. The 18 Month Variable Rate Account is no longer being offered .... If you do not select another CD, your Account will roll over to an 18 Month Floating Rate Account ... earning the interest rate and annual yield for that product in effect on the maturity date of your Account." A true and correct copy of this letter is attached hereto as Exhibit C. 17. In response to Defendant's September 27, 2000 letter, Plaintiff drafted a letter, dated October 2, 2000, in which he stressed that Defendant is required to honor its contractual obligations pursuant to Plaintiff's IRA that he purchased from Dauphin Deposit and is now held by Defendant, and that if Defendant failed to do so Plaintiff would be compelled to initiate legal action. A true and correct copy of Plaintiffs October 2, 2000 letter is attached hereto as Exhibit D. 18. On October 11, 2000, Defendant replied to Plaintiffs October 2, 2000 letter and stated, inter alia, that it was "not obligated to continue to offer Plaintiff the 18 Month Variable Rate CD ...." A true and correct copy of Defendant's October 11, 2000 letter is attached hereto as Exhibit E. 19. Contrary to the terms of Plaintiff's IRA, Defendant terminated his account on October 12, 2000 and converted his funds into a separate and distinct 18 month variable rate account which does not provide a guaranteed minimum interest rate of 10%. COUNTI Request for Declaratory Judgment 20. The averments in Paragraphs 1 through 19 are incorporated by reference as if fully set forth herein. 21. Defendant terminated Plaintiff's IRA effective October 12, 2000 and transferred his retirement funds into a separate 18 month variable rate account which neither guarantees nor is currently providing a minimum interest rate of 10%; to the contrary, the 18 month variable rate account to which Plaintiff's retirement funds have been unlawfully transferred by Defendant is presently earning an interest rate of approximately 2%. 22. Plaintiff submits that Defendant is required to continue to provide him with a minimum guaranteed interest rate of 10% pursuant to the contractual terms of Plaintiff's IRA. 23. Plaintiff further submits that Defendant's act of terminating Plaintiff's IRA on October 12, 2000 was unlawful and constituted a breach of Plaintiff's IRA agreement with Defendant. 24. There exists a real and actual controversy which is justiciable in this Court. 25. There exist antagonistic claims indicating imminent and inevitable litigation. 26. A declaratory judgment is appropriate in determining issues of contractual interpretation. WHEREFORE, Plaintiff respectfully requests that this Court enter a Declaratory Judgment in his favor ordering Defendant to reinstate Plaintiff s IRA and to continue to honor the contractual terms of Plaintiffs IRA until the account is fully withdrawn or otherwise terminated by Plaintiff, in addition to awarding attorney's fees, costs and such other and further relief as this Court deems just and appropriate. COUNT II Violation of Unfair Trade Practices Act and Consumer Protection Law 27. The averments in Paragraphs 1 through 26 are incorporated by reference as if fully set forth herein. 28. Between 1982 and 1984, Dauphin Deposit solicited, marketed, advertised, offered and sold to the general public a program of individual retirement accounts which included Plaintiff s IRA. 29. When Dauphin Deposit solicited, marketed, advertised, offered and sold Plaintiffs IRA, it represented, promised and guaranteed that the 18 month investment option would bear a minimum interest rate on all monies deposited of 10% per annum compounded quarterly and would be automatically renewed unless fully withdrawn or otherwise terminated by the account holder. Dauphin Deposit further represented, promised and guaranteed that there would never be any type of maintenance fees or other charges levied upon account holders. 30. Authorized representatives, agents and/or employees of Dauphin Deposit, acting in the course of and in furtherance of their employment, and under the express direction, control and supervision of management, promised and guaranteed that Plaintiff's IRA would bear a minimum interest rate on all monies deposited of 10% per annum compounded quarterly and would be automatically renewed unless fully withdrawn or otherwise terminated by the account holder. 31. At the time Dauphin Deposit was marketing and selling Plaintiff's IRA., it was also marketing and selling other types of IRA accounts that offered higher initial interest rates than the 18 month variable rate account, but without a guaranteed minimum rate of interest. 32. In reliance upon the written and oral representations of Dauphin Deposit and its authorized representatives, agents and employees, Plaintiff selected Plaintiff s IRA as the investment option for his retirement fund. 33. In selecting his investment option, Plaintiff reasonably relied upon the representations of Dauphin Deposit that the interest rate earned by all monies in Plaintiff's IRA would never fall below 10% per annum and would be renewed automatically until fully withdrawn or otherwise terminated by him. In making this selection, Plaintiff made an investment decision to forego the opportunity to open a different type of IRA account that would have paid higher initial interest rates because of the guaranteed minimum interest rate offered by the 18 month variable rate account. 34. On October 12, 2000, subsequent to the aforementioned exchange of correspondence between Defendant and Plaintiff, Defendant, the successor-in-interest to Dauphin Deposit, failed to renew Plaintiffs IRA. 35. Defendant's termination of Plaintiffs IRA, in light of the representations, promises and guarantees of Dauphin Deposit, constitutes willful, deliberate and intentional violations of § 201- 3 of the Unfair Trade Practices Act and Consumer Protection Law, 73 Pa. C.S. § 201-1 et seq., as defined in § 201-2(4) as follows: (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (ix) Advertising goods or services with intent not to sell them as advertised; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 36. As the direct and proximate result of Defendant's wrongful actions as set forth herein, Plaintiff has suffered actual damages in the amount of the difference between the interest Plaintiff would have earned on his account since October 12, 2000 with the minimum guaranteed interest rate of 10%, and the interest Plaintiff has earned since October 12, 2000 in the account to which his retirement funds have been unlawfully transferred by Defendant. 37. Plaintiff is entitled to and hereby demands as an award of damages an amount of three times his actual damages pursuant to 73 Pa. C.S. § 201-9.2(a), in addition to his attorneys' fees incurred as a result of this litigation. 9 WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with attorney's fees, costs and such other and further relief as this Court deems just and appropriate. COUNT III Fraud 38. The averments in Paragraphs 1 through 37 are incorporated by reference as if fully set forth herein. 39. Dauphin Deposit induced Plaintiff to invest his money with a minimum interest rate lower than that generally prevailing, knowing but intentionally not revealing that it would terminate Plaintiff's IRA when interest rates declined. 40. The aforesaid actions of Dauphin Deposit and its authorized representatives, agents and employees constitute fraudulent misrepresentations, and are an outrageous attempt by a billion dollar bank to coerce and intimidate persons, including Plaintiff, to give up their rights. 41. By its actions and the actions of its authorized representatives, agents and employees, Dauphin Deposit intended to deceive Plaintiff by inducing him to select Plaintiffs IRA as a secure investment with a guaranteed minimum interest rate of 10%, automatically renewable until fully withdrawn or otherwise terminated by him. 42. Plaintiffjustifiably relied on the fraudulent misrepresentations of Dauphin Deposit and its authorized representatives, agents and employees. 43. Defendant, as the successor-in-interest of Dauphin Deposit, has assumed the liability for Dauphin Deposit's hereinabove described fraudulent actions with respect to Plaintiff. 10 44. The hereinabove described wrongful, fraudulent and outrageous actions subject Defendant to punitive damages, in addition to the actual damages Plaintiff has suffered as a direct and proximate result of said conduct. WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with punitive damages, attorney's fees, costs and such other and further relief as this Court deems just and appropriate. COUNT IV Breach of Contract 45. The averments in Paragraphs I through 44 above are incorporated by reference as though fully set forth herein. 46. Plaintiff entered into a contract with Dauphin Deposit, which was later assumed by Defendant as Dauphin Deposit's successor-in-interest, providing for an IRA in the form of an 18 month variable rate account, automatically renewable without any action on the part of Plaintiff, which account was guaranteed to provide a minimum interest rate of 10% per annum compounded quarterly until fully withdrawn or otherwise terminated by Plaintiff. A copy of said contract has not been attached to Plaintiffs Complaint because it is in the possession of Defendant. 47. Defendant's termination of Plaintiffs IRA constitutes a breach of the agreement between Plaintiff and Defendant. 48. As a direct and proximate result of Defendant's breach of the agreement between it and Plaintiff, Plaintiff has suffered actual damages. 11 49. Plaintiff has fully and completely performed all of his respective obligations under the terms and conditions of the agreement. WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with attorney's fees, costs and such other and further relief as this Court deems just and appropriate. COUNT V Breach of Fiduciary Duty 50. The averments in Paragraphs 1 through 49 above are incorporated by reference as though fully set forth herein. 51. In its capacity as custodian of Plaintiff's IRA account, Defendant acts as a trustee and fiduciary. 52. Defendant's termination of Plaintiff's IRA as aforesaid constitutes a breach of its fiduciary duties to Plaintiff and Plaintiff's beneficiaries. 53. As a direct and proximate result of Defendant's wrongful actions and breach of its fiduciary duties, Plaintiff has suffered actual damages. WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with attorney's fees, costs and such other and further relief as this Court deems just and appropriate. COUNT VI Quantum Meruit 12 54. The averments in Paragraphs 1 through 53 above are incorporated by reference as though fully set forth herein. 55. Dauphin Deposit wrongfully and intentionally caused Plaintiff to maintain Plaintiff's IRA by fraudulently misrepresenting that said account guaranteed a minimum interest rate of 10% per annum compounded quarterly and automatically renewable for as long as Plaintiff maintained the account. 56. Defendant, as the successor-in-interest to Dauphin Deposit, has assumed the duties and responsibilities commensurate with maintaining Plaintiff s IRA. 57. Defendant has been unjustly enriched by virtue of Plaintiffs IRA investments. 58. Defendant's retention of the conferred benefit of Plaintiffs deposits in his IRA accounts is unjust and it would be unconscionable to permit Defendant to retain said benefit without payment therefor at the variable interest rates promised by Dauphin Deposit and its authorized agents, representatives and employees, guaranteed not to fall below 10% per annum compounded quarterly and automatically renewable until fully withdrawn or otherwise terminated by the account holder. 59. As the direct and proximate result of the aforementioned wrongful actions of Dauphin Deposit and Defendant, Defendant has been unjustly enriched at the expense of Plaintiff and Plaintiff has been damaged by virtue of said unjust enrichment. WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with attorney's fees, costs and such other and further relief as this Court deems just and appropriate. 13 COUNT VII Promissory Estoppel 60. The averments in Paragraph 1 through 59 above are incorporated by reference as though fully set forth herein. 61. Dauphin Deposit, by its authorized representatives, agents and/or employees, intentionally or negligently misrepresented to Plaintiff a material fact regarding Plaintiff's IRA, to wit: that Plaintiff's IRA guaranteed a 10% minimum interest rate compounded quarterly until Plaintiff fully withdrew or otherwise terminated his individual retirement account when it knew said representation was false. 62. Dauphin Deposit, by its authorized representatives, agents and employees deceived Plaintiff, and knew or should have known that Plaintiff would rely upon the misrepresentations hereinabove described in Paragraph 61. 63. Plaintiffjustifiably relied upon the misrepresentations of Dauphin Deposit's authorized representatives, agents and employees to his detriment. 64. The aforementioned intentional and/or negligent misrepresentations of Dauphin Deposit are imputed to Defendant as the successor-in-interest to Dauphin Deposit. 65. Plaintiff has sustained actual damages as the result of the conduct hereinabove described in Paragraphs 61 through 64. 14 WHEREFORE, Plaintiff demands judgment in his favor and monetary damages in excess of the jurisdictional limits for compulsory arbitration, together with attorney's fees, costs and such other and further relief as this Court deems just and appropriate. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. DATE: / J I pj?Z By:. fl:z Ronald M. Katzman, Esquire - I.D. #07198 Thomas 7. Weber, Esquire - I.D. #58853 David M. Steckel, Esquire - I.D. #82340 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff 84474.1 15 Exhibit A Exhibit B DAUPHIN DEPOSIT BANK AND TRUST COMPANY INDIVIDUAL RETIREMENT CUSTODIAL ACCOUNT AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1982 (Under Section 408(a) of the Internal Revenue Code) Commonwealth of Pennsylvania County of SS: This Agreement entered into as of this day of '19 , by (hereinafter referred to as "Deposito(') (Depositors date of birth Social Security number - ), presently residing at and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, its successors and assigns, as Trustee (hereinafter referred to as "Custodian"), having its principal place of business at 213 Market Street Harrisburg, Pennsylvania. WITNESSETH: WHEREAS, the Depositor desires to provide for his/her retirement and forthe support of his/her beneficiaries upon his death; WHEREAS, to accomplish this purpose, the Depositor desires to establish an individual retirement account as described in section 408(a) of the Internal Revenue Code of 1954, as amended, or any successor statute (hereinafter referred to as "the Code'); WHEREAS, ? Depositor has previously adopted the Dauphin Deposit Bank and Trust Company Individual Retirement Custodial Account and by this Agreement wishes to adopt this Amended and Restated Individual Retirement Custodial Account ? Depositor contemporaneous with the establishment of this Individual Retirement Custodial Account has transferred, assigned, and conveyed to the Custodian the sum of dollars ($ in cash. ? Depositor wishes to establish this Individual Retirement Custodial Account in order to transfer thereto a rollover contribution. ? Depositor is establishing this Individual Retirement Custodial Account in conjunction with a Simplified Employee Pension Plan established by his/her employer under section 408(k) of the Code. .i. and &369 n? WHEREAS, the Custodian has furnished the Depositor with a disclosure statement as required under the Income Tax Regulations under section 408(i) of the Code. NOW, THEREFORE, the Depositor and the Custodian agree as follows: ARTICLE I 1. The Custodian may accept additional contributions in cash from or on behalf of the Depositor during a taxable year of the Depositor except as limited by paragraphs 2 and 3. 2. Except in the case of a rollover contribution as that term is described in section 402(a)(5), 403(a)(4), and408(d)(3) or409(b)(3)(C) of'the Code, the Custodian will only accept cash and will not accept contributions on behalf of the Depositor in excess of $2,000 for any taxable year of the Depositor. 3. Notwithstanding paragraph 2, if this Custodial Account is a part of a Simplified Employee Pension Plan, the Custodian will accept cash contributions on behalf of Depositor which are not in excess of $15,000 for a taxable year of Depositor. ARTICLE II The interest of the Depositor in the balance in the custodial account shall at all times be nonforfeitable. ARTICLE III No part of the custodial funds shall be invested in life insurance contracts; nor may the assets of the custodial account be commingled with other property except in a common trust fund or a common investment fund (within the meaning of section 408(a)(5) of the Code). No part of the custodial funds shall be invested in "collectibles" as such term is defined in section 408(n) of the Code. ARTICLE IV 1. The entire interest of the Depositor in the custodial account must be, or commence to be, distributed before the close of the taxable year in which the Depositor attains age 70'/2. Not laterthan the close of such taxable yearthe Depositor may elect, in a form and at such time as may be acceptable to the Custodian, to have-the balance in the custodial account distributed in: (a) a single sum payment, (b) an annuity contract providing equal or substantially equal monthly, quarterly or annual payments commencing not later than the close of such taxable year'over the life of the Depositor, •2. (c) an annuity contract providing equal or substantially equal monthly, quarterly or annual payments commencing not later than the close of such taxable year over the joint and last survivor lives of the Depositor and his/her spouse, (d) equal or substantially equal monthly, quarterly or annual payments commencing not later than the close of such taxable year over a period certain not extending beyond the life expectancy of the Depositor, or (e) equal or substantially equal monthly, quarterly or annual payments commencing not later than the close of such taxable year over a period certain not extending beyond the joint life and last survivor expectancy of the Depositor and his/her spouse. Notwithstanding that distributions may have commenced pursuant to option (d) or (e), the Depositor may receive a distribution of the balance in the custodial account at any time upon written notice to the Custodian. If the Depositor fails to elect any of the methods of distribution described above on or before the close of his/her taxable year in which he/she attains the age 70'/2, distribution to the Depositor will be made prior to the close of such taxable year by a single sum payment. If the Depositor elects a mode of distribution under(b) or(c) above, such annuity contract must satisfy the requirements of sections 408(b)(1), (3), (4) and (5) of the Code. If the Depositor elects a mode of distribution under(d) or(e) above, figure the payments made in tax years beginning in the tax year the Depositor reaches age 70'/2 as follows: (i) For the minimum annual payment, divide the Depositor's entire interest in the custodial account at the beginning of each year by the life expectancy of the Depositor (or the joint life and last survivor expectancy of the Depositor and his/her spouse, or the period specified under (d) or (e) (whichever applies)). Determine the life expectancy in either case as of the date the Depositor reaches 70'/2 minus the number of whole years passed since the Depositor became age 70'/2. (ii) For the minimum monthly payment, divide the result in (i) above by 12. (iii) For the minimum quarterly payment, divide the result in (i) above by 4. 2. If the Depositor dies before his entire interest in the trust is distributed to him, or if distribution has been commenced, as provided in (e) above, to his surviving spouse and such surviving spouse dies before the entire interest is distributed to such spouse, the entire interest of the remaining undistributed interest shall, within five years after the Depositors death orthe death of the surviving spouse, be distributed in a single -3- sum or be applied to purchase an immediate annuityforthe beneficiary or beneficiaries of the Depositor or his surviving spouse. The terms of such annuity shall provide for payments over the life of the beneficiary or beneficiaries or for a term certain not exceeding the life expectancy of such beneficiary or beneficiaries. Any annuity contract so purchased shall be immediately distributed to such beneficiary or beneficiaries. However, no such annuity contract shall be required to be purchased if distributions over a term certain commenced before the death of the Depositor and the term certain is for a period permitted under (d) or (e) above. ARTICLE V Except in the case of the Depositors death or disability (as defined in section 72(m) of the Code) or attainment of age 59%:, before distributing an amount from the account, the Custodian shall receive from the Depositor a declaration of the Depositors intention as to the disposition of the amount distributed. ARTICLE VI 1. The Depositor agrees to provide information to the Custodian at such time and in such manner and containing such information as may be necessary for the Custodian to prepare any reports required pursuant to section (408)(i) of the Code and the regulations thereunder. 2. The Custodian agrees to submit reports to the Internal Revenue Service and the Depositor at such time and in such manner and containing such information as is prescribed by the Internal Revenue Service. ARTICLE VII Notwithstanding any other articles which may be added or incorporated, the provisions of Article I through. III and this sentence shall be controlling. Furthermore, any such additional article shall be wholly invalid, if it is inconsistent, in whole or in part, with section 408(a) of the Code and the regulations thereunder. ARTICLE VIII This Agreement shall be amended, from time to time, in order to comply with the provisions of the Code and regulations thereunder. Furthermore, other amendments may be made upon consent of the undersigned. ARTICLE IX 1. This custodial account is for the exclusive benefit of the Depositor and his beneficiaries and may not be assigned, pledged or subjected to other voluntary or involuntary alienation in whole or in part .4. 2. The Custodian shall receive fair and reasonable compensation hereunder. 3. If the Depositor should become disabled before his entire interest is distributed to him, he may elect to receive the balance of his account under the provisions of and options available under Article IV hereof. Disability shall mean the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long- continued or indefinite duration. 4. The Custodian may resign at any time upon giving ninety (90) days prior written notice thereof to the Depositor. 5. All questions arising underthis Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. 6. All funds contributed to this Custodial Account shall be invested by the Custodian in savings accounts of the Custodian or in obligations or securities issued by the Custodian. 7. Depositor may direct the Custodian to transfer all or part of his account balance from one savings instrument offered by Custodian for use with Individual Retirement Custodial Accounts to another savings instrument offered by Custodian for use with such Account in accordance with rules and regulations established by the Custodian and by Federal regulations with respect to the administration of such accounts. 8. Schedule A. attached hereto and by this reference made a part hereof, shall be completed by Depositorforthe purpose of designating a beneficiary or beneficiaries to receive death benefits payable hereunder. In the absence of completion of Schedule A, death benefits shall be paid to the Depositofs Estate. ARTICLE X 1. The Custodian shall not be liable in any way for any act or omission, unless due to its own negligence or willful misconduct As between Custodian and persons dealing with it, except in cases involving liability under the preceding sentence, any claim of such persons against Custodian shall be limited to the assets of the custodial account, and the Custodian shall not be liable for any such claim in its corporate capacity. 2. The Custodian need not engage in litigation unless first indemnified against expense by Depositor. 3. The Custodian shall be entitled to rely upon any information, notice, direc- tion or certificate furnished by Depositor. The Custodian shall be under no duty to make any inquiry in connection therewith. -5- IN WITNESS WHEREOF, the Depositor who has caused these presents to be signed and the Custodian, to evidence its acceptance of these presents, have hereunto set their hands and seals, on the date and year first above written. WITNESS: DEPOSITOR: (SEAL) ATTEST: CUSTODIAN: DAUPHIN DEPOSIT BANK AND TRUST COMPANY - BY ACKNOWLEDGEMENT RECEIPT OF DISCLOSURE STATEMENT The undersigned acknowledges receipt of the Dauphin Deposit Bank and Trust Company Individual Retirement Account Disclosure Statement Date: -6- SCHEDULE A Name of Depositor Depositors Address City 6 State INDIVIDUAL RETIREMENT CUSTODIAL ACCOUNT DESIGNATION OF BENEFICIARY Social Security No. Date of Birth Subject to the conditions below, I hereby designate the following beneficiary(ies) under my Individual Retirement Account hereby revoking all prior designations, if any, made by me: Name/ Relationship Address Primary Beneficiary(ies) Contingent Beneficiary(iesl (Signature of Depositor) DAUPHIN DEPOSIT BANK AND TRUST COMPANY, CUSTODIAN, hereby acknowledges receipt of the above Designation of Beneficiary(ies). Date 8y. (Authorized Officer) CONDITIONS 1. This designation is subjectto all terms and provisions of the Individual Retirement Custodial Account (under Section 408(a) of the Internal Revenue Code) and shall be effective only if received prior to the death of the Depositor by Dauphin Deposit Bank and Trust Company, Custodian of the account 2. This designation shall be effective with respect to the Depositors entire interest if any, under the Custodial Account remaining unpaid to such Depositor or to any beneficiary at such Depositor's or beneficiarys death, as the case may be, notwithstanding Article IV of the custodial Agreement 3. Unless otherwise provided on the face of this designation, each payment to be made pursuant to this designation, shall be paid in equal shares to such of the primary beneficiaries who are living at the time such payment becomes due or if no primary beneficiary shall be living at the time such payment becomes due, such payment shall be made in equal shares to such of the contingent beneficiaries who are then living. 4. The Depositor shall have the right to change this designation at any time or times during his lifetime by filing a new designation with the Custodian. ?;: T•, , ;;; - DISCLOSURE ,? DAUPHIN DEPOSIT BANK AND TRUST COMPANY Individual Retirement :Account Information ter ?~ i 1\ ,td?"?:: The following information is presented to explain certain statutory require- r;- merits, limitations, and restrictions which are applicable to Individual Retirement Accounts (IRA). Additionally, we are setting forth relevant financial information which should be considered byyou in establishing your Individual Retirement Account We ask that you review this information closely. If following your review you have any questions concerning the information contained herein, we will be glad to answer them for you. YOU ARE PERMITTED TO REVOKE YOUR IRA WITHIN 7 DAYS AFTER IT IS. ?.rG information immediately ??lv to'be assuH dDyou understand your rights and limitations. If you gwish to revoke your IRA, 44;6should marl a written notification of your election to revoke to: s ??fJ/? ?L+ Zr x y Individual Retirement Accounts !r W 7 _rs t4 Dauphin Deposit Bank and Trust Company ' P.O. Box 2961 Harrisburg, Pennsylvania 171U5 If you have any questions concerning your IRA, or your right to revoke it please call 717 - 255-2121. If you revoke your IRA, you will be entitled to a return of the entire amount you paid into it without any adjustment for administrative expenses or decreases in market value. STATUTORY. REQUIREMENTS r'iv + Y .The employee Retirement Income Security Act of 1974 which provides !?sel`?,y authority for establishing an IRA requires that such accounts (whether they are trust -y 'rrr,t accounts or custodial accounts) be established pursuant to a written instrument The law further provides that the written instrument must meet certain enumerated requirements. ' These requirements must beset forth in the agreement which creates the IRA, and are as follows: -- (1) The trustee or custodian must be a bank, Federally insured credit union, savings and loan association, or other person deemed eligible under Regulations of the Secretary of the Treasury. (2) The trustee or custodian will accept only cash contributions not in excess of $2,000 in any tax year (usually the calendar year) of the individual. A limited exception is provided for "rollover" contributions and will be discussed later. - - I. (3) You will have a nonforfeitable interest in all amounts credited to your account (4) No part of the funds of the IRA may be invested in life insurance contracts, nor may the assets of the IRA be commingled with other property except in a common trust fund or common investment fund. Beginning in 1982, no part of the funds of an IRA may be invested in "collectibles' (i.e. art work, rugs, antiques, metals, gems, stamps, coins, alcoholic beverages, etc.) (5) Generally, your entire interest in an IRA must be withdrawn before the end of the tax year in which you attain age 7031. If your interest in the IRA is used to purchase an annuity which is then distributed to you, this is in effect a distribution of your entire interest You may, if your IRA allows, arrange for periodic withdrawals, provided the first such withdrawal is made before the end of the tax year in which you attain age 70'/1 and your entire interest will be withdrawn over one of the following periods: (a) Your life; (b) The lives of you and your spouse; (c) A fixed period of years which is not longer than your life expectancy, (d) A fixed period of years which is not longer than the life expectancy of you and your spouse. (6) If you were to die before your entire interest is distributed to you, or if distribution has been commenced to your surviving spouse (as -- provided in 5(b) or 5(d) and your surviving spouse dies before the entire interest is distributed to her (or him), the remaining undistributed interest must within 5 years after the later of your death or the death of your surviving spouse, be distributed in a single sum or be applied to purchase an immediate annuity for your beneficiary orycur surviving spouse's beneficiary. The terms of this annuity may provide to payments over the life of the beneficiary, orfor a term certain not exceeding his or her life expectancy. Any annuity contract so purchased will be distributed immediately to the beneficiary or beneficiaries. However, no such annuity contract will be required to be purchased if distributions over a term certain began before your death and the term certain is for a period permitted under 5(c) or 5(d). DEDUCTIBILITY OF CONTRIBUTIONS The initial requirement for deductibility of IRA contributions is that you be eligible to contribute to an IRA Beginning in 1982, you are eligible to contribute to an IRA if you received compensation during the tax year. •2- If you are eligible to contribute to an IRA, you may take a deduction from O, gross income on yourfederal income tax return for the least of the following amounts in 14;f .each year you make a contribution: ayp.? (1) The actual amount of the contribution made to your IRA: or (2) $2,000: or . (3) 100% of your compensation. Compensation is defined as wages, salaries, or professional fees, and other amounts received for personal services actually rendered (including earned income). It does not include earnings from property such as interest, rents, and dividends. If compensation is not includible in gross income (such as income earned from sources ,.,- • : outside the United States), it is not treated as compensation in determining the maximum limitations for the deduction. The contribution to your IRA reduces your gross income for federal income tax purposes "However, it has no effect on state or local income taxes Even if you do not itemize your deductions and you use the standard deduction, you may still claim a federal " income tax deduction for contributions to your IRA. You must make contributions to your IRA by April 15 of the following year for which you claim the deduction. For example, if you area calendar year taxpayer, you must - make contributions no later than April 15 of the year following the year in which the deduction is to be taken. No deductions will be allowed for contributions made during or after the tax -year in which you attain age 70Y2. ?=•' `Lt ^% z. ?-<-• Contributions must be made in cash (currency, checks, etc.). No deductions are allowable for contributions of property (stocks, bonds etc.). Since a,deduction is available to each eligible individual, your marital status J I "`""" ` and whether or not you file a joint return will have no effect on contributions to an IRA Both husband and wife can claim the deduction if each individually is eligible and each adopts a separate IRA If they do, the deduction is computed separately for each spouse, whether or not they file a joint tax return. Community property laws of a State or other jurisdiction do not apply to individual retirement savings programs. Therefore, you and your spouse must meet the qualifications individually and determine the amount of deductible contributions on the income that each has earned individually. You may not claim a deduction based on the earnings of your spouse, even though a State's law provides that each owns half of the income. .3. In addition, if you . e eligible to establish an IRA and your spouse does not work (i.e., does not receive any compensation during the year), you may, in addition to making contributions to your IRA. make deductible contributions to an IRA established for the benefit of your spouse, If you make contributions for both yourself and your nonworking spouse, your deduction from gross income on your federal tax return will be equal to the least of the following amounts for each year you make a contribution: (1) The amount contributed to your account and to your non- working spouse's account; (2) $2,250, or (3) '00% 'of your compensation. EXCESS CONTRIBUTIONS You may contribute only the deductible amount to your IRA No deduction is allowed for an excess contribution to your IRA Generally, any contributions exceeding the limitations set forth on pages 3 or 4 are excess contributions subject to a nondeductible 6% excise tax. If you make excess contributions, you must pay the excise tax The amount of the tax for any tax year cannot exceed 6% of the value of the account as of the close of that tax year. The excise tax is not applied if the excess contribution, and any interest earned on it up to the date of distribution, is distributed back to you. The interest element will be taxable income to you in the tax year in which you receive it, but the amount of the excess contribution is not subject to any tax This distribution must take place no later than the time you are required to file your tax return (plus allowed extensions) forthe year. in question. If the aistribution takes place afterthe due date for filing your return, the entire distribution will be subject to income tax, and, if you have not attained the age of 59%2, it will also be subject to the 10% additional income tax on premature distributions, -T.- ?: ?=discussed later. If an excess amount is contributed in one year and is not eliminated in later years, the excess amount plus earnings on such excess will be subject to a cumulative 6% excise tax each year until it has been eliminated. The excess may be eliminated in later years if you do not take your maximum allowable deduction for retirement savings in the later years. Thus, if you take less than the maximum allowed as a deduction in any,--ar after the excess contribution is made, the difference between the maximum allowaL: deduction and the amount taken as a deduction is used to reduce the excess contribution and its accumulated earnings. Distributions out of the account that were includible in your gross income for the tax year or any prior tax years also will be used to reduce the excess contribution for the year after the year in which distributions were made. .4- rrF :: If less than the maximum amount of contributions have been made in years before the year you made an excess contribution, the prior year s diff erences may not be _ r„?-used to reduce the excess contribution, nor may you "catchup" by making and deducting Je `:u ".7a larger contribution in a year following a year in which you contributed less than the ;,;.-allowable amount DISTRIBUTIONS ' t Taxable distributions from your IRA are taxed as ordinary income regardless of their source. They are not eligible for capital gains treatment or the special 10-year -averaging rules that apply to lump sum distributions from qualified employer plans. -However, you may compute your tax liability under the regular income averaging provisions. ' Since you are allowed s deduction forthe contributions you made to your IRA, '-? -your basis in the account is zero and all the monies which you oryour beneficiary receive 7 `4back from the IRA are subject to income tax. •? "`'`'` `"" u ?The minimum age at which distributions may be made from a retirement -,44';,;?i;,0!2 account without incurring an additional 10% excise tax liability is age 59'/z Your entire interest in the account must be distributed not later than the end of the tax year in which ,you attain age 70%; or, before the close of the tax year in which you attained age 70'/:, distributions must have commenced which are payable over your life (or the lives of you and your spouse) or over a period certain not exceeding your life expectancy (or the life expectancy of your and your spouse), determined at age Mi. Ifyou(oryour surviving spouse) die before receiving the entire interest in your IRA, the remaining interest must be distributed to your beneficiary (or your surviving espouses beneficiary) in one lump sum within 5 years after death, or be applied to purchase an annuity for the beneficiary (or beneficiaries) payable over the life or for a *. z, period not exceeding the life expectancy of the beneficiary (or beneficiaries). Any annuity - `.contract so purchased must be distributed immediately to the beneficiary. However, no annuity contract is required if you were receiving distributions before death for a term certainnot exceeding your life expectancy A death motivated distribution to the beneficiary of your IRA will generally be ct to Federal estate and Pennsylvania inheritance taxes along with other assets in ;.:';d `your estate. A distribution from your IRA to your beneficiary will not be subject to Federal . . - estate tax in your estate if it is distributed to a beneficiary (other than your estate) in the form of an annuity contract or other arrangement providing for a series of substantially equal payments for the life of the beneficiary or for a period of at least 36 months after your death. Your designation of a beneficiary who is to receive distributions of amounts credited to your IRA in the event of your death does not constitute a taxable gift for Federal gift tax purposes. ` If, when you retire, your IRA is used to purchase an annuity contract which is distributed to you, the total value of the annuity contract is not included in your income -5- when you receive it Instead, the payments under the contract are taxable when you receive them. Since your basis in the contract is zero, the payments are fully taxable. The amounts that you receive from your IRA qualify for the retirement income credit If individual retirement accounts are transferred from you to your former spouse, because of a divorce decree (or a written instrument incident to a divorce, the transaction will not be considered as a taxable distribution. The account will be considered an IRA of the spouse who received it, rather than the spouse from whom it was transferred. Starting from the day of transfer, it will be treated as being maintained for the benefit of the spouse who received it PREMATURE DISTRIBUTIONS If you receive a payment from your IRA before you attain the age of 59'/2 or become disabled, the payment will be considered a premature distribution. If you receive a premature distribution, the amount received is included in your gross income in the taxable year of receipt In addition, your income tax liability for that tax year is increased by an amount equal to 10% of the premature distribution includible in your gross income. If your account is disqualified because you engaged in a prohibited trans- action, discussed later, the amount of income deemed distributed to you is included in your gross income. In addition ten percent of this amount is added to your income tax liability for that tax year, if you had not attained the age of 59%: before the beginning of such tax year. If payments are made or deemed made to you from your IRA before you attain age 59%: because you are disabled,. the 10% additional tax will not apply to these distributions. UNDER-DISTRIBUTIONS Amounts contributed to an IRA are intended to be used for retirement purposes and are not to be retained in your account beyond the maximum age for payout. If sufficient payments are not timely made from your account you will be liable for an excise tax on the under-distribution. A 50% excise tax will be imposed on the under-distribution, representing the difference between the minimum payout required for the tax year in question and the amount actually paid out to you. The tax is to be paid by the individual to whom the _ minimum payments should have been made. For example, if the minimum payout that you should have received is $1,000 for the taxable year and you only receive $600, an excise tax of $200 (50% of the $400 under-payment) must be paid by you. .6- "" - TAXABILITY OF THE ACCOUNT Your IRA is exempt from tax unless a prohibited transaction is engaged in or unless it receives unrelated business income. Unrelated business income is income received by the IRA from activities that are not substantially related to the functions for which the IRA was allowed exemption from taxation, such as engaging in a business normally carried on for profit If you participate in an individual retirement account you are subject to the prohibited transaction rules (but not the tax) of Section 4975 of the Internal Revenue Code and will be treated.as the creator of the account with respect to these provisions. Examples of prohibited transactions are the borrowing of the income or corpus from an account selling property to or buying property from the account, or receiving more than reasonable compensation for services performed for the trust or account If you engage in a prohibited transaction, the account will lose its exemption _from taxation. This will be effective as of the first day of the tax year in which the •prohibited transaction occurs. Once your account loses its exempt status, you are _ required to include the fair market value of its assets in your income for that tax year.,Fair -market value and total assets on hand is determined as of the first day of the tax year in which the prohibited transaction occurred. In addition, you may be liable for the 10% tax on premature distributions. See Premature Distributions discussed previously. If you use your individual retirement account or any portion thereof as security for a loan, the portion so used is treated as distributed to you. See Distributions and Premature Distributions discussed earlier for tax treatment of the amount considered distributed. TAX-FREE TRANSFER OF FUNDS ?<...You are permitted to transfer your retirement savings from one individual ns retirement savings program to another without the imposition of any tax Basically, this allows you to withdraw your individual retirement savings and reinvest it in another program. You will not be allowed to take a tax deduction from the amount transferred. A transfer of contributions is subject to the following limitations: (1) Transfer contributions between individual retirement savings programs may occur once each year, and (2) Money or property distributed from a retirement program must be reinvested within 60 days of the date it was received, and if property is received as a distribution that same property must be reinvested. 7- An example of reinvesting the same property is to receive a distribution consisting of stock and contributing that same stock to the new program. Transfers from an individual retirement account to a qualified endowment contract will be treated as a transfer contributic-. However, the amount of the assets that are used to purchase life insurance protection. are considered to be amounts distributed to you, and you must include this amount in your gross income for that tax year. This amount will not be subject to the 10% tax on premature distributions, discussed previously. ROLLOVER CONTRIBUTIONS If you, as a member of an employers qualified plan, sever employment with the employer and receive a lump sum distribution, you will be able to transfer all or a part of the taxable portion of the distribution to an individual retirement account It should be noted that for a distribution to qualify as a lump sum distribution, the entire amount must be received in one tax year and the distribution must have been made either after you - attained age 59'/:, were separated from the service of your employer, or were disabled. Also, if you were a member of an employers qualified plan which terminated, and you received your entire distribution from that Plan within the same taxable year, you may transfer the taxable portion of that distribution to an individual retirement account These rollover contributions are permissible even though you would not otherwise be eligible to establish an individual retirement account A transfer will be treated as a rollover contribution if it is completed within 60 days after the receipt of the distribution. If property other than cash is distributed, that same property or the proceeds from the sale vof that property must be reinvested in the IRA In the case of a rollover contribution from a qualified plan, the amount that you will be permitted to reinvest tax free is a portion of or all of the total amount of distribution from the plan less any contributions made to the plan by you, the employee. In order to be able subsequently to transfer the lump sum distribution, which you rolled over from your employers qualified pension plan to an IRA, you must keep it in its own separate IRA You should remember that you are only allowed to roll over the assets of an IRA to a qualified employers pension plan when those assets are made up of the amount received from a lump sum distribution from a qualified employers pension plan. Where a self-employed individual rolls over his account in a HR-10 (Keogh plan), he may not again roll these assets over into a qualified employers pension plan. .a- Sutf - ADDITIONAL INFORMATION You may defer making your contribution until April 15 of the following year ,':.after your tax year closes. In making this election, it is important to insure that the Bank is advised as to which tax year your contribution is to be applied. *'' ! + 'You will be required to file Form 5329 (Return for Individual Retirement Savings Arrangement) with your tax return only if you owe excess contribution taxes, premature distribution taxes, or taxes on certain accumulations. The individual retirement accounts offered by Dauphin Deposit Bank and Trust Company have been.approved as to form for use as individual retirement accounts by the Internal Revenue Service. See Appendix A for Financial Disclosures of the various r• .:: ;;.Individual Retirement Accounts offered by Dauphin Deposit Bank and Trust Company. L -<-°7 The internal Revenue Service approval is a determination only as to the form of the individual retirement accounts and does not represent a determination of the merits of such individual retirement accounts. c 1. J i If you require any additional information concerning the statutory require- . ... J ? ? .. merits placed on an individual retirement account or have any additional questions regarding the operation of an individual retirement account, please feel free to call on us. You may also contact the District Director of the Internal Revenue Service Office with which you file your Federal Income Tax Return or any district office of the Internal Revenue Service for additional information. A .4 `W APPENDIX A FINANCIAL INFORMATION At the present time there is no service or investment fee charged on funds in the Dauphin Deposit Bank and Trust Company Individual Retirement Custodial Account Amounts placed in a Custodial Account earn a fixed or a variable rate of interest depending upon which investment option you choose. The following investment options are currently available from Dauphin Deposit Bank and Trust Company. 26 Week Certificate of Deposit- $10,000 minimum deposit The interest rate at which this Certificate may be issued is subject to change weekly. However, the rate at which a Certificate is issued is guaranteed for the initial 26 week term, and will not be changed during the initial 26 week tern of the Certificate. The interest rate is set by the U.S. Treasury, and is based upon eitherthe average yield of 26 week U.S. Treasury Bills, plus V4 of 1 per cent as determined by the most recent auction of 26 week U.S. Treasury Bills, or upon an average of the average yields of 26 week Treasury Bills from the past four weekly auctions, whichever is higher. Federal Banking laws prohibit the compounding of interest on this Certificate. This Certificate is automatically renewable. If you take no action within 10 days following a maturity date, principal and all accrued interest will be renewed for another 26 week term, at the interest rate in effect on the maturity date. Federal regulations require that if you withdraw all or a portion of this Certificate before the initial or any subsequent maturity date, you must forfeit3 months simple interest on the amount withdrawn, without regard to the length of time the funds have been on deposit Early withdrawal penalties are waived if the depositor has attained the age of 59%, or if the depositor is deceased, or if the depositor -is disabled as defined in Section 72(m)(7) of the Internal Revenue Code. B. 18 Month Variable Rate Account - No minimum deposit Additional deposits may be made to this account at any time without extending the ;maturity date, so that all funds in the account will mature 18 months from the date of the initial deposit The rate of interest paid on this account will Y ' be changed on the first business day of every month during the term of the account and will be based on the average yield of 2 year U.S. Treasury Notes, as determined by the most recent auction oft year U.S. Treasury Notes. However, Dauphin Deposit Bank and Trust Company will guarantee a minimum rate of 10%. Interest paid is simple interest credited on the quarterly anniversary date of the initial deposit A statement of the account will be issued on each quarterly anniversary date of the initial deposit This account is automatically renewable. If you take no action within 10 days following a maturity date, principal and all accrued interest will be renewed for another 18 month term. Federal regulations require that if you withdraw all or a portion of the funds in this account before the initial or any subsequent maturity date, you must forf eit6 months simple interest on S-362-A the amount being withdrawn, based upon the interest rate being paid on the account at the time the withdrawal is made, without regard to the length of time the funds have been on deposit Early withdrawal penalties are waived if the depositor has attained the age of 59'/2, or if the depositor is deceased, or if the depositor is disabled as defined in Section 72(m)(7) of the Internal Revenue Code. C. 18 Month Fixed Rate Certificate of Deposit- $100.0.0 minimum deposit The interest rate at which this Certificate may be issued is subject to change. However, the rate at which a Certificate is issued is guaranteed for the initial 18 month term, and will not be changed during the initial 18 month term of the Certificate. The interest rate is based upon the average yield of U.S. Government securities of comparable maturity. Interest is compounded daily and credited at maturity. This Certificate is automatically renewable. If you take no action within 10 days following a maturity date, principal and all accrued interest will be renewed for another 18 month term, at the interest rate in effect on the maturity date. Federal regulations require that if you withdraw all or a portion of this Certificate before the initial or any subsequent maturity date, you must forfeit 6 months simple interest on the amount withdrawn, without regard to the length of time the funds have been on deposit Early withdrawal penalties are waived if the depositor has attained the age of 59'h, or if the depositor is deceased, or if the depositor is disabled as defined in Section 72(m)(7) of the Internal Revenue Code. D. 30 Month Fixed Rate Certificate of Deposit- $100.00 minimum deposit The interest rate at which this Certificate may be issued is subject to change. However, the rate at which a Certificate is issued is guaranteed for - the initial 30 month term, and will not be changed during the initial 30 month term of the Certificate. The interest rate is set by the United States Treasury, and is based upon the average yield of 30 month U.S. Government securities. This Certificate is automatically renewable. If you take no action within 10 days. following a maturity date, principal and all accrued interest will be renewed for another30 month term, at the interest rate in effect on the maturity date. Federal regulations require that if you withdraw all or a portion of this Certificate before the initial or any subsequent date, you must forfeit 6 months simple interest on the amount withdrawn, without regard to the length of time the funds have been on deposit Early withdrawal penalties are waived if the depositor has attained the age of 59'/:, or if the depositor is deceased, or if the depositor is disabled as defined in Section 72(m)(7) of the Internal Revenue Code. -- The attached tables can be used to project the growth of contributions placed in a Custodial Account The projections contained in the attached tables are based on the interest rates and assumptions shown on the tables. Growth of your account as shown on the tables is not guaranteed and may vary as interest rates vary. r.t TABLE A projects the growth of a single contribution of $1,000.00 to an 18 month Variable Rate account TABLE B projects the growth of an 18 month Variable Rate account assuming a deposit of $1,000.00 on the first day of each year for 50 years. TABLE C projects the growth of a single contribution of $1,000.00 to an 18 month or a 30 month Fixed Rate Certificate of Deposit TABLE D projects the growth of an IRA account assuming that a $1,000.00 18 month or 30 month Fixed Rate Certificate of Deposit is purchased on the first day of each year for 50 years. TABLE E projects the growth of a single contribution of $10,000.00 to a 26 week Certificate of Deposit To determine your projected account balance at a particular age, subtract your age at the time you establish the account from the age at which you wish to determine your projected account balance, and read across the table for the number of years equal to the difference. For example, if you are age 40 when you establish your account and wish to determine your projected benefit at age 65, you would subtract 40 from 65 and find your projected account balance on the 25 line of the table. 70 N W V Z CO c W H Q 0. V H Q x 0 0 0 w a • V C co 0 Ln 4 D C m e } X O C 4 m V C 4 m 9 0 a O • C 4 Y co V 0 m } L7 C.) n Q O V N (O N^ (O N N I. .- V M O 00 M L7 03 O O .- ? N^ M O o7 m a7 (O .- V M (") Q) O n ()) N O N O M V n O N O^ a^ 7 O M in a if N O Lb r` O Li Oi (O of (G Ln O M O R (D 00 M N O CO O M^ cf n to M (T O N Ln Q7 V .- cf (A lT Ln N ^ N (O N O N n (p O (O W (D O O M L) O Ln N^ M M a(O ao O"Nan6M6 64646 n C OOONLn of ^ •-- ^^ N N N N M M M sf cf to CO CO n w M O .- N M V ^ M CD M Q O V O cf CO N N 0 M W O It a n IT N M T^ M W n IT M d' cT n a m m N n n (O n N In to N N (D d' N L) 00 117 Ln v Cn C10 O N O N N aD to W M T N M n M (l7 n 0) W 00 D O W O 0 O O O n n n M v M 0 n O M 117 O O M M n O^ LO of 0 CO N N D) D7 O 117 M O O N 0 O mOO ^NQLno00D7 M117nON117ONOOLn6Ln ^^^^^^^ N N N N M M M M? 7 Ln LD Ln O n to (O n 0 0 O^ N M v M CO n O M O N M C In (D n 00 L7) O N N N N M M M m m M M M M M of cf tf 't "t "r 7 R a V LP ^ n n 0 M N n M M^^ M N N n O N m n L) 00 M n M 0 n V U) n M (O M N M^ a CD M O Lo (O M O7 M n n .- O N OI M LO r -Z 00 6 Ln N O N 6 M n n m N 66 O N 117 lA N N (D N N n t0 O) O O fD O O W a 0 0 N ^ N M? (O 00 O N a n S M (O O cf O V O n a^ O O O N ^ ^ •- ^ ^ N N N N M M M cf cf cf Ln CO (D n O) L7) O N W 8 M M't N V O n M (D v 0 n n N 00 w 0 M C7 Ict ?t (O M R O '- O W O (O M D1 n O N M O 00 N ^ n (D. O) M 0 ^ n (p ao M Ln V N 0 m N CV O M M N 0 n m 00 00 CD W O M CO ^ n L) 7 L) 00 N Cn M O In O M N O M N O^ N a Ln O O T .- M Ln n O N Ln C1) N (O O Ln O Ln ^ n? ^^^ •- ^^^^ N N N N M M M M a v Ln Ln 6 CD n n O ^ N M of L) (D n oo a) O^ N M '7 to (D n 00 a) O^ N M Q Lo .- ^ ^ ^ ^ ^ ^ ^ ^ N N N N N N H vi m m w 9 w O C ? . m c O C J 0 w U w w w m L w p w N ? 0 O L LO c m o - U ? N w C r o w c a '- ar w O ? L 0 3 L d E o o ` o o ^ p yi w 0 0 c ` 0 ? C w ) `0 iJ U i) w D O C C 0 -y 0 d E 0 0 L U 3 c 0 w Cw m w «_ r T) « a U U 0 y (1 w w w _m N (1 L E F- N TABLE A ' Intertistjs simple interest, credited and compounded quarterly, foractual numberof days in a year(365), ,sing a base year of 360 days. ANTICIPATED BALANCES 18 MONTH VARIABLE RATE I.R.A. ACCOUNT Deposit Beginning Balance at End of Year Balance at End of Year Year of Year @ 8.50% @10.00% 1 $ 1,000.00 $ 1,089.01 $ 1,105.31 2 11000.00 2,274.94 2,327.02 3 1,000.00 3,566.43 3,677.38 4 1,000.00 4,972.87 5,169.96 5 1,000.00 6,504.49 6,819.71 6 1,000.00 8,172.44 8,643.20 7 1,000.00 9,988.84 10,658.72 8 1,000.00 11,966.91 12,886.49 9 1,000.00 14,121.04 15,348.87 10 1,000.00 16, 466.91 18, 070.55 11 1,000.00 19,021.57 21,078.86 12 1,000.00 21, 803.60 24,403.97 13 1,000.00 24, 833.26 28,079.25 14 1,000.00 28,132.57 32,141.56 15 1,000.00 31,725.55 36,631.68 16 1,000.00 35,638.31 41, 594.65 17 1,000.00 39,899.34 47,080.26 18 1,000.00 44, 539.62 53,143.56 19 1,000.00 49, 592.92 59, 845.38 20 1,000.00 55, 095.99 67,252.97 21 11000.00 61,088.87 75,440.64 22 11000.00 67,088.87 84,490.56 23 1,000.00 74, 722.30 94,493.51 24 1,000.00 82,462.03 105,549.87 25 1,000.00 90, 890.65 117,770.56 26 1,000.00 100,069.46 131,278.21 27 1,000.00 110,065.25 146,208.34 28 1,000.00 120,950.71 162, 710.7 5 29 1,000.00 132.805.05 180,951.02 30 1,000.00 145, 714.49 201,1 12.16 31 1.000.00 159, 772.95 223, 396.46 32 1,000.00 175,082.70 248,027.50 33 1,000.00 191, 755.10 275,252.42 34 1,000.00 209, 91 1.45 305, 344.38 35 1,000.00 229, 683.82 338, 605.30 36 1,000.00 251,216.05 375,368.91 37 1,000.00 274,664.77 416,004.07 38 11000.00 300, 200.5 7 460, 918.49 39 11000.00 328,009.21 510, 562.82 40 1,000.00 358, 292.98 565,435.16 41 1,000.00 391,272.19 626,086.06 42 1,000.00 42 7,186.74 693,1 24.08 43 1,000.00 466,297.90 767,221.92 44 1,000.00 508,890.19 849,122.75 45 1,000.00 555,273 44 _ 939,648.61 46 1,000.00 605, 785.08 1 ,039, 707.68 47 1,000.00 660, 792.55 1,150,303.91 48 1,000.00 720,696.01 1,272,546.96 49 1,000.00 785,931.24 1,407,663.34 50 1,000.00 856,972.79 1,557,008.74 TABLE 8 N W Z g Q C13 C W Q C6 F- Q r N IL W C LL O `W r Q U. P x W W H Q G C W x W x I- Z O O M x H Z SO i 00 r g s o ? O a N CO N (O O M m f` t\ O t` m N m f` ? M '?t N m r` m m ? '3 O (`7 N? m 0 m a0 .- O Ln Ln r. .- N 0 0 0 O O a m m q M N O 0'7 , V LO n P l. m W M n7 m O 66 N O m m r-? M IA Q m M m M n m m Ln N f0 M LL'7 OD M m t` 00 m y n 0 maOmm.-(OMMf? aLnO? (n 0D (0.-LOf?mNr?(om C M^ n as O M m a0 1 m C %i N P,7 M O 00 (O Ln Ln n O M 00 (p N N N N M M M-cr LO M cc f., f` 00 m O N C m to Ln N O M N N (D ^ to M O W^ m M m m O N l0 m m 47 .- m m M M O M p^ a LO (O O n O N Lp m n m M. JO (C of N O <G v6 O C6 M O tT M m 0 0 N v w 0 v v (n^ ?N(0OO1,aMaN00m117 V M M N 0It 0 V LC) 00 ? (0 M O N (O N- N n to N M M M O f` O C ^m(O 6ON V mmNvi 07 N(o .-(D ?ao7N6 m00 ? ? ? N N N N N M M M ?? ? Lf7 Ln (O (p ^ 00 O O O m V? 0 N N N N Cl) M M M f`a') M M M M M a tt a a a a V' V' a to 0 0 O 4 • 0 C m m 0 N r 4 O V C q m r 4 y m0VLnm NLON?av(0 r.m mNaaf.LO?mm (0 r` v O O N N, N m m M-t 0 0 M N M O M m m v Q It W O O f` M O O m m UO LO O Ln Cl) c n* U) LO N It N co O N 10 O (O M M Ln m Ln o 1w) M M Ir O O (0 m O O m m N M In m 00 O N a f` O M t` .- to o O m N m to .4. M N M OO ?- N N N N M M M R Vt Ln Ln (0 (0 n m m O N 1.9 OQ IT N M M (O M a N n 0 m M N n (0 M m m M m O 0 M N m 7 7" w m O .- N O m (0 O M O m n Ln - m .-- 07 m a LO w m n N 4 et m m (0 N M I CO m M LO m M N (0 m O N LO m LO N O N LO O ao 00 ? 07 ao N O M N (0 (0 Q m N O N M't Ln n m ? M LO O O M f\ O sf m V m LO CO (0 v IT ?- N N N N M M M V a v L17 t1J (p n n 00 6 O W .- N M < In (O n 00 m O N M't u7 (0 n 00 m O N M Ln " ^ - ^ ^ .- .- . N N N N N N a v c O a E 0 U N N d U c J c 0 m v 0 N I: (7 a c O 0 a a a M 0 a c o L ? `o d o d ?T w a a m c c N 5 d . in c o o fO u v ? a > c ? y N ? 0 1 LC N 5 9 O O a ? m a E u ? d m 0 3 n U Y ? a o L N ? v TABLE C Interest is compounded daily, for actual number of days in a year (3651, using a base year of 360 days. ANTICIPATED BALANCES 18 MONTH & 30 MONTH FIXED RATE CERTIFICATE OF DEPOSIT Deposit Beginning Balance at End of Year Balance at End of Year Year of Year @ 9.25% @10.00% _ 1 S 1,000.00 $ 1,098.31 - S 1,106.69 2 11000,00 2,304.60 2,331.46 3 1,000.00 3,629.47 3.686.90 4 1,000.00 5,084.59 5.186.95 5 1,000.00 6,682.77 6.847.04 6 11000,00 8,438.06 8,684.25 7 1,000.00 10,365.92 10.717.48 g 1,000,00 12,483.30 12.967.63 9 11000.00 14,808.85 15,457.86 10 1.000.00 17,363.02 18.213.77 11 11000.00 20.16829 21,263.71 12 11000.00 23.249.34 24,639.06 13 1,000.00 26,633.30 28.374.45 14 11000.00 30.349.93 32.508.53 15 1,000.00 34,431.94 37,083.60 16 1,000.00 38.915.25 42,146.79 17 1,000.00 43.839.32 47,750.18 18 1,000.00 49,247.48 53.951.41 19 1.000.00 55.187.31 60.814.25 20 11000.00 61,711.09 68,409.29 21• 1,000.00 68,876.22 76.814.66 22 1,000.00 76,745.75 86,116.82 23 1.000.00 85.388.94 96.411.43 24 1,000.00 94,881.84 107.804.39 25 1,000.00 105,307.99 120.412.87 -26 1,000.00 116,759.13 134,366.58 27 1,000.00 129,336.04 149.809.02 28 1,000.00 143,149.38 166.899.04 29 1,000.00 158,320.71 185.812.42 30 1,000.00 174,983.54 206,743.69 - 4; ...' . 31 11000.00 193.284.49 229.908.15 32 1,000.00 213,384.61 255.544.05 ?•',:,?„ir:?. i ?.. 33 1,000.00 - 235,460.77 283,915.09 , 34 „ _ 1,000.00 259.70723 315.313.07 35 1,000.00 286,337.37 350.060.94 36 1,000.00 315.585.52 388.516.11 37 1,000.00 347,709.06 431,074.11 38 1,000.00 382.990.66 478,172.69 39 11000.00 421,740.80 530.296.27 40 1,000.00 464,300.47 587,980.99 41 1,000.00 511,044.18 651,820.18 42 1,000.00 562,383.56 722,470.45 43 1,000.00 618,769.49 800.658.49 44 - 11000.00 680,699.06 887,188.53 45 11000.00 748,716.92 982,950.57 46 1,000.00 823,421.62 1,088.929.60 47 11000.00 905.470.55 1,206.215.67 48 11000.00 995.585.71 1,366,015.15 49 11000.00 1,094,560.09 1,479,663.11 50 1,000.00 1,203.264.65 1,638,637.07 TABLE D I o _ . W °] W? m O V N N W N W m O M O M O W h , M V' N Q ? W m C N M M M T O m O m N 0 m O h M ? O !q m N m M In In Nqr M N N N F- a N W In M* _- ^ In In 6 h co In co co N h h h f? h M M h In In m N M O In O M^ N tr In m m co mIn hIn I00m? anM V MvvM co In In T W W W 00' M c %i h M W h (D v M M In m O Q m tD v v (D - M (O W ID co N h N h M O h In v C In h O n N a M IT ID h m, C N N N N M Cl) M?q:r In In tD h h W m O? III F- N C N M 64 W N m C In In O h vvomaom Mm O W mOU"?? Wh0MM?M0 h h N M M IN u u O O a N m m .N C) ? M N M O m N M N N 7 p In Nh W MWm(n In Wmmh^W W W mMMIn ^^ = I m M W M M h W m h (D m W W h (D I+ MNOoNh(D O?In In -V W (D O - ° it .-W vmO W N • 4OWMOmhhhW OM?NW In 4L6 h0 W4v(0? M h N V h W co m 0 0 .- N M R W h CO O ? M ID h m N v h O N M M M R 4tf R 0 C ,.. .? ._ N N N N N 4 ? H 4 64 N co O N a m W W p 4 M I In (D h W m 0 •- N M I In In h W m 0 ID N CO m O N I^ LL N N N N M M M M M M M M M M C Q? C R Q QIT IT IT m ? Z O } } g W ° a L O m u ; n O . D LL °oa -- W M=? c Q W p m a a ? -«a o V o m ? o c{ co In o m ID O'T a' -T h W ?- N In h ID O m v M m w M W N h m h 'N . Z Y h W h h o q M N N h In a In cm O co m W m W h _ . . W - Di noM co C.i In In n Ci Ili N Oi F• v m m h(D lei M Oi L6 O h ' CQ W ?. d M co ID In m O co IG In co W h h v m h m N C) O N N co O to (O O V CO M, m O M co ID h m 0 CD h M of M W, N 7 ID _ O n N Qi W t: n W M Q W fa Oi N 7 6 m N W Qi -T m M m O I Y - L' F• . - - .- - - .- - N N N N M M Cl) Q Q In M CD h h W m 0^ u q LO :Fl??. '1'' _ i m Y C 0 O ° O .? a a m m E = ' n m CO N CO C) W O m h O CO Q W^ m M m co N W N co c N h (D M O O In m In m m h R m v W N m W h Q F- h Q O Y m Ir (n F- N O N W F- W h W O W Q W W In o a W m M m Y m 3 O I O O W W N , m ' M N h N h a N N W O P. m co .o v 1O C W tn ID (D h w .- In O 0 W M N N N IT n m O O N h v In w In In ci of to h W O -- M In fz Cf v (?: o c i (c O 4 as M CO N O u ^ ^ C F- F- .- .- N N N N N N M M M V Q< IO LL7 In In to a J 4 ? N q Y m ? N m t C !. F- N M to IO h co m 0 .- N M v m W^ co C) N N N N N N } TABLE E Exhibit C Dauphin Deposit Bank and Trust Company Member FDIC. October 11, 1989 Dear IRA Customer We previously notified you that the 18 Month Variable Rate Certificate of Deposit investment option ("18 Month Option") under your Dauphin Deposit Individual Retirement Account ("IRA") was being discontinued following the expiration of a final 18 month renewal term. The 18 Month Investment Option was one of several investment options available under our IRA program when you opened your Dauphin Deposit IRA. We have now had the opportunity to review additional circumstances including various presentations and statements made in the offering of this Option which guarantees a minimum rate of 10% simple interest during its term. As permitted by the IRA Agreement, Dauphin Deposit has decided to continue to provide the 18 Month Option for IRA customers who currently participate in that investment. In addition to IRA monies currently invested in the 18 Month Option, customers may continue to invest new contributions in the 18 Month Option, up to the maximum IRA contribution limits established under the present law and Agreement. Generally this is $2,000 or $2,250 in case of spousal IRAs. Qualified rollovers are permitted in the contract. Funds can also be deposited in any other currently available Dauphin Deposit IRA investment options. If your Dauphin Deposit IRA monies are currently invested in the 18 Month Option and you wish to continue that option, you need not take any further action. If you desire to change your IRA investments following the expiration of your 18 month renewal period, please stop in at any of our branch offices within 10 days of the renewal date. We again want to assure you that Dauphin Deposit is committed to helping you plan for your retirement. Should you have any questions, please feel free to call Betty Davis at 255-2130. Sincerely, Charles A. Robson, III Vice President CAR/clr allfirst Allfirst Bank P.O. Box 1596 Baltimore, MD 21203 September 27, 2000 GREGORY SCOTT WHITEFORD 1611 DOOLEY RD WHITEFORD MD 21160 RE:8-700-024-0480001 Dear Mr. Whiteford: On October 12, 2000, your 18 Month Variable Rate Account #8-700-024-0480001 in the amount of $115,761.80 will mature. The 18 Month Variable Rate Account is no longer being offered. We have several CD investment options available. To learn our current CD rates and terms, please call 1-800-842-2265. If you do not select another CD, your Account will rollover to an 18 Month Floating Rate Account (please see the enclosed Truth-in-Savings Disclosure) earning the interest rate and annual yield for that product in effect on the maturity date of your Account. If your account rolls over into the 18 Month Floating Rate CD, the new maturity date of your CD will be April 12, 2002. If you wish to add funds to your current CD or change the term, you can simply do it by mail or stop by any one of our more than 250 convenient branch offices. You have 10 days following maturity to add any additional funds, change your CD to another term or withdraw funds without penalty. To bank by mail, simply use the form on the back of this letter. Select the option you desire, and enclose your check, or provide instructions authorizing us to transfer funds, if that is what you wish to do. Then just sign and return it to us in the pre-addressed envelope. It's that easy. For your convenience, we can also assist you by phone. Please call us at 1-800-881-6290. Thank you for choosing us as your bank. We appreciate your business and look forward to continuing to serve you in the future. Personally yours, irarenew Am Exhibit D t?VY GREGORY S. WHITEFORD 1610 Dooley Road Whiteford, Md. 21160 o "21 2000 "*X,41 walK ck? 18 -Mouth 2000 ? ? . ,A 'p" ty ?? /WLAL ?; -QQ Rute a"-C J as a, M6u4ttn P ea n,1 / 8- MvA, h C 04 ,z I ,2?- , r/cl A c D. 34j mc? /0 50 V-ftm 2 2 0 0 0 r tavi ?' ?Ivny ?rn e, 1 -,? ?!t?7 52- 5o6 ; -•'e /27 Exhibit E allfirst ????II'til ?Shcl? ?i.l Illlll itl l'. \??? ?1'1?3 October 11, 2000 Gregory S. Whiteford 1610 Dooley Road Whiteford, Maryland 21160 Re: 18 Month Variable Rate CD Dear Mr. Whiteford: Your letter dated October 2, 2000 to our Savings and Retirement Division has been referred to me for response. Some additional background may be helpful in understanding the bank's position with respect to this matter. As you know from previous correspondence, in 1994 Dauphin Deposit Bank and Trust Company (now, Allfirst Bank) and a class of over 4000 customers went to court to determine whether the bank had the right to terminate an 18 Month Variable Rate CD held as an investment by the class members in their IRA Custodial Account. Neither the class nor the bank was successful in obtaining a summary judgment and the case ultimately focused on numerous factual issues. In light of the conflicting testimony adduced at trial, the parties (each advised by counsel and other experts) reached a settlement of the matter which ultimately was upheld following an appeal by the class to the Pennsylvania Supreme Court. Following the implementation of the settlement with the class members, the bank ceased offering the 18 Month Variable Rate CD as a renewal option. Rather than requiring those individuals who opted-out of the class (such as you) to select a market rate investment option, the bank decided to offer the same settlement terms that were made available to Class A participants in the settlement to those individuals who opted out. Turning now to the argument raised in your letter, the bank disagrees that any guarantee of a minimum rate existed with respect to anything other than the original 18 month term of your CD. Our position is supported by the brochure provided as part of the IRA kit to customers establishing an 18 Month Variable Rate Account which clearly stated that "... the rate of interest will not go below 10% as long as Dauphin Deposit offers an 18 Month Variable Rate Account." Further, the bank did not waive the right to cease offering the 18 Month Variable Rate CD simply by permitting holders to renew the CD. Gregory S. Whiteford October 11, 2000 Page Two As you know, we cannot force you to accept either of the alternatives we offered because that we are not . . i however, continues to be you opted of the on. , obligated touco t nue tosoffertto yoOu he 18tMonth Variable Rate CD as you assert. I would be happy to discuss any specific factual issues that you believe apply to your particular situation at your convenience. Please feel free to contact me at the above number. Very truly yours, Grego Fson-'---- Senior Vice President and General Counsel GKT/dak irawhiteford.ltr . , ? ? Q?( v? ? o W ? .? ? ? 6? Ronald M. Katanan, Esquire I.D. No. 07198 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire I. D. No. 82340 GOLDBERG, KATZMAN & SHIPMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 GREGORY SCOTT WIIITEFORD, 1611 Dooley Road Whiteford, MD 211601 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. NO. 02-4950 ALLFIRST FINANCIAL, INC., 25 South Charles Street Baltimore, MD 21201, Defendant. JURY TRIAL DEMANDED PRAECIPE TO ATTACH VERIFICATION TO PLEADING TO THE PROTHONOTARY: Please attach the original Verification attached hereto to the Complaint filed in the above- captioned matter on October 10, 2002, in the Office of the Prothonotary of Cumberland County, Pennsylvania. GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: /0 2, By 4??iz? Ronald M. Katzman, Esquire Attorney I.D. #07198 Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff VERIFICATION I, GREGORY SCOTT WHITEFORD, hereby authorize that I am the Plaintiff in this action; that I have read the foregoing document; that the facts stated therein are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: 10-)7-02., Qv 1A ykWrord Gregory Scott 'teford CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Allfirst Financial, Inc. Attention: Legal Department 25 South Charles Street Baltimore, MD 21201 Plaintiff GOLDBERG, KATZMAN & SHIPMAN, P.C. By. Ronald M. Katzman, Esquire Attorney I.D. #07198 Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Al)-2111d-2- Attorneys for Plaintiff Date: f J C_ : . ' 1 fY [T -?f t CLL, -W? . - v r: c? GREGORY SCOTT WHITEFORD, 1611 Dooley Road Whiteford, MD 21160, Plaintiff, V. ALLFIRST FINANCIAL, INC., 25 South Charles Street Baltimore, MD 21201, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17103 (717) 249-3166 (800) 990-9108 GOLDBERG, KATZMAN & MAN$ P.C. Ronald M. Katzman, Esquire; Attorney I.D. #07198 Thomas J. Weber, Esquire; Attorney I.D. #58853 David M. Steckel, Esquire; Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Date: November 8, 2002 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, certified and postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Allfirst Financial, Inc. Attention: Legal Department 25 South Charles Street Baltimore, MD 21201 Plaintff GOLDBERG, KATZMAN & SHIPMAN, P.C. Ronald M. Katzman, Esquire Attorney I.D. #07198 Thomas I Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 2344161 Date: November 8, 2002 Attorneys for Plaintiff vu; r r_ -< Thomas A. French, Esquire Attorney I.D. No. 39305 James E. Ellison, Esquire Attorney I.D. No. 81372 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Rhoads & Sinon, LLP and the undersigned as counsel for Defendant, Allfirst Financial, Inc., in the above-captioned matter. RHOADS & SINON LLP By: - omas A. French James E. Ellison One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Alffirst Financial, Inc. 445886.1 CERTIFICATE OF SERVICE I hereby certify that on November 15, 2002, a true and correct copy of the Praecipe for Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Lynne . 'tter ., ?? ?, ,..,?, c. ,;?, L::,, :=_ ? - --- , Ci ri ..+, t D . r .. _ r_ .- t_.' . Cw?: `_ 0 'S '? - . Ronald M. Katzman, Esquire I.D. No. 07198 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire I. D. No. 82340 GOLDBERG, KATZMAN a SHIPMAN, P.C. Attomeys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 GREGORY SCOTT WHITEFORD, 1611 Dooley Road Whiteford, MD 21160, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 V. ALLFIRST FINANCIAL, INC., 25 South Charles Street Baltimore, MD 21201, JURY TRIAL DEMANDED Defendant. AFFIDAVIT OF SERVICE; COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF DAUPHIN ) SS: Personally appeared before me, a Notary Public, in and for said Commonwealth and County, DAVID M. STECKEL, ESQUIRE, who being duly sworn according to law deposes and says that on October 11, 2002, he sent a copy of a Complaint filed with the Cumberland County Court of Common Pleas, by certified mail, return receipt requested to Allfirst Financial, Inc., Attention: Legal Department, and the return receipt card signed by Arloff and shown as being delivered October 16, 2002, is attached hereto and made a part hereof. D VID M. STECKEL, ESQUIRE Sworn to and subscribed before me this 12th day of Nov ber, 2002. } otary blic My Commission Expires: CHER"t. lkiUC MYCOM'i?! .. NOTAMALU& CMjgg IRG, DAMPH N CODUMMY, Vf 15SION 86590.1 ti m ' M r- I Ir Postage $ rt.l O Certified Fee Return Receipt Fee (Endorsement Required) Q C] Restricted Delivery Fee O (Endorsement Required) G Total Postage & Feas S N e se Pent /ead" b, m Y? V, Or f : , or P? Bar No. IL n ¦ C mplete Items 1, 2, and 3. Also complete it 4 If Restricted Delivery is dealred. ¦ nt your name and address on the reverse s that we can return the card to you. ¦ A ach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: AA ,,OA4CiaO VK A )U aIaD/ 3. SarviceTyle 2. Article Number C (Transfer from service label) Vb form 3811, August 2001 A. Siena X 13 Agent ? Addre D. Is delivery address different fmm item 1? ? Yes H YES, enter delivery address below: 13 No Certfied M191 ? Expreas Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 3q Co oooa ?zogp 733a uomestic Return Receipt 102595-02-M-0835 A USPS - Track & Confirm Al Page 1 of 1 . ...' ........................ .. .. . ......,h i'sAC2 ':t ?2&t^'?`t`.ix??? ?. l L???+? . v. pp ??.;.? ? : ?:. t ............................:................... Track & Confirm Shipment History Track & Confirm i You entered 7099 3400-0002 2090 7332 Enter number from shipping re Your item was delivered at 9:15 am on October 16, 2002 in H..h.v...H.....v.»N.....HH..H... BALTIMORE, MD 21202. Here is what happened earlier: Track & Confirm FAQs a ¦ ARRIVAL AT UNIT, October 16, 2002, 6:41 am, BALTIMORE, MD 21202 POSTAL INSPECTORS site map contact us government services Preserving the Trust Copyright ®1999.2002 USPS. All Righter Reserved. Terms of Use Privacy Policy http://trkcnfrmi.smi.usps.com/netdata-egi/db2wwwlcbd_243.d2w/detail 10/21/02 Cp ? ?. -; t?-1 (_:. G' iii _,. ., . ?._ \.. __ ,a 1 fJ GREGORY SCOTT WHITEFORD, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 02-4950 ALLFIRST FINANCIAL, INC., Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Gregory Scott Whiteford and Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be entered against you. RHOADS & SINON LP By: ---'"' - Thomas A. French One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 02-4950 ALLFIRST FINANCIAL, INC., Defendant JURY TRIAL DEMANDED ORDER AND NOW, this day of , Defendant Allfirst Financial, Inc.'s Preliminary Objections are granted. Count VI (Quantum Meruit) and Count VII (Promissory Estoppel) of Plaintiffs Complaint are dismissed with prejudice. J. Thomas A. French, Esquire Attorney I.D. No. 39305 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOW COMES, Defendant, Allfirst Financial, Inc., by and through its attorneys, Rhoads & Sinon LLP, and files the within Preliminary Objections to Plaintiffs Complaint, as follows: DEMURRER TO COUNTS V AND VII 1. Plaintiffs Complaint alleges that Defendant's predecessor in interest, Dauphin Deposit Bank and Trust Co., and Plaintiff entered into an IRA Agreement in the form attached as Exhibit "A". (Complaint, paragraph 7). 2. Plaintiff alleges that the IRA Agreement (Exhibit "A", Appendix "A"), provided that "Dauphin Deposit Bank and Trust Co. will guarantee a minimum rate of 10%" interest on Plaintiffs deposits. Plaintiff claims that the minimum interest rate was guaranteed 453655.1 "until the amount was fully withdrawn or otherwise terminable by Plaintiff'. (Complaint, paragraph 9). 3. Plaintiff claims that Defendant notified Plaintiff that it would no longer guarantee the minimum interest rate, and in so doing, failed to "honor its contractual obligations pursuant to Plaintiff s IRA...." (Complaint, paragraph 16 -19) 4. The Complaint asserts seven counts, including Count IV "Breach of Contract", Count VI "Quantum Meruit", and Count VII "Promissory Estoppel". 5. As a matter of law, the doctrines of quantum meruit and promissory estoppel are inapplicable where the relationship between the parties is governed by an express contract. 6. Counts VI and VII must be dismissed for failure to state claims upon which relief can be granted. WHEREFORE, Defendant respectfully requests this Court to dismiss Counts VI and VII of the Complaint, with prejudice. RHOADS & SINO'N LLP L? By: Thomas A. French One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233•-5731 Attorneys for AlUirst Financial, Inc. - 2 - CERTIFICATE OF SERVICE I hereby certify that on December 9, 2002, a true and correct copy of the Preliminary Objections to Plaintiff's Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Lynne G. Ritter crr r? ?= nr j-7 _- LLJ t-= C u t71 p Z. G r\j U J Ronald M. Katzman, Esquire I.D. No. 07198 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire I. D. No. 82340 GOLDBERG, KATZMAN & SHIPMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 GREGORY SCOTT WHITEFORD, Plaintiff, V. ALLFIRST FINANCIAL, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL, DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECITONS AND NOW, comes Plaintiff, Gregory Scott Whiteford;, through his counsel Goldberg, Katzman & Shipman, P.C., who files this response to the preliminary objections filed by Defendant, Allfirst Financial, Inc. 1. The Complaint is a document which speaks for :itself. Therefore, no response is required. 2. The Complaint is a document which speaks for itself. Therefore, no response is required. 3. The Complaint is a document which speaks for itself. Therefore, no response is required. 4. The Complaint is a document which speaks for itself. Therefore, no response is required. 5. The averment in Paragraph 5 constitutes a conclusion of law to which no response is necessary. To the extent a response is required, said averment is denied. By way of further answer, Defendant fails to cite any law in support of its erroneous assertion. Pleading alternative causes of action against the same defendant is expressly permitted in the Commonwealth pursuant to the Pennsylvania Rules of Civil Procedure and relevant case law. See Pa. R. Civ. P. No. 1020(c); Pennfield Coro. v Meadow Valley Elec Inc , 413 Pa. Super. 187, 201, 604 A.2d 1082, 1089 (1992); Baron v. Bernstein 175 Pa. Super. 608, 611, 106 A.2d 668, 669 (1954). 6. The averment in Paragraph 6 constitutes a conclusion of law to which no response is necessary. To the extent a response is required, said averment is denied. WHEREFORE, Plaintiff respectfully requests that Defendant's preliminary objections be denied. Respectfully Submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By Ronald M. Katzman, Esquire Attorney I.D. #07198 Thomas 7. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA. 17108-1268 (717) 234-4161 Date: December 20, 2002 Attorneys for Plaintiff 89057.1 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Thomas A. French, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys for Plaintiff GOLDBERG, KATZMAN & SHIPMAN, p.G By: -- c? 2- Ronald M. Katzman, Esquire Attorney I.D. #07198 Thomas I Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: December 20, 2002 Attorneys for Plaintiff c? ?->> - , -? ? ?.? c;r a ? ??: :r ?` ?' , _, ?, ? ??' - _ - ? --r ; .._..:- -a l ; . . ? ? ' .. _+ ? r _?; ^ Cw` ? Ronald M. Katzman, Esquire I.D. No. 07198 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire 1. D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff GREGORY SCOTT WHITEFORD, Plaintiff, . I. ALLFIRST FINANCIAL, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED STATEMENT OF INTENTION TO PROCEED To the Court: Gregory Scott Whiteford, by and through his counsel, Goldberg Katzman, P.C., intends to proceed with the above-captioned matter. GOLDB TZMAN, P.C. By: Th mas J. We , Esquire (I.D. No. 58853) Ronald M. Katzman, Esquire (I.D. No. 07198) David M. Steckel, Esquire (I. D. No. 82340) 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Thomas A. French, Esquire Rhoads & Sinon, LLP I South Market Square Harrisburg, PA 17101 Attorneys for Plaintiff GOLDB KATZMAN, P.C. By: I AA I fA A ?'X A - Tho as . Weber, squire (I.D. #58853) 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Date: October 3, 2005 ?. ?> .;:a o ?- ?.? -?, ;:s, , c-n T "' --? gin' - ;i,; J ? yl ? . M r `, `i 1 _ Gl `.?{??? __? G-, `:J h PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated injull) GREGORY SCOTT WHITEFORD (Plaintiff) vs. ALLFIRST FINANCIAL, INC. (Defendant) No. 02-4950 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.) - Defendant's Preliminary Objections 2, Identify counsel who will argue cases: (a) for plaintiff: David M. Steckel, Esq. Goldberg Katzman, P.C. (Name and Address) 320 Market Street, Harrisburg, PA 17108 (b) for defendant: Mary P. Patterson, Esq. Rhoads & Sinon, LLP (Name and Address) I South Market Street, Harrisburg, PA 17101 I l will notify all parties in writing within two days that this case has been listed for argument. Yes 4. Argument Court Date: January 11, 2006 Date: October 6, 2005 David M. Steckel, Esq. Print your name Plaintiff Attorney for ? -a t - Ay v CJ 7Y a PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) GREGORY SCOTT WHITEFORD vs. ALLFIRST FINANCIAL, INC. (Plaintiff) (Defendant) No.02-4950 , Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff. David M. Steckel, Esq. Goldberg Katzman, P.C. (Name and Address) 320 Market Street. Harrisburg, PA 17108 (b) for defendant: Mary P. Patterson, Esq. Rhoads & Sinon, LLP (Name and Address) South Market Street, Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument 4. Argument Court Date: Signature David M. Steckel, Esq. Print your name Plaintiff Date: November 15, 2005 Attorney for ` ca =n C! `: , -? _, ??: . ., ., ?.? J- r ? a ,; ? ? ` `.:'i " ? ?- `r _\ Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire 1. D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff GREGORY SCOTT WHITEFORD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 02-4950 V. ALLFIRST FINANCIAL, INC., JURY TRIAL DEMANDED Defendant. PRAECIPE TO STRIKE PRELIMINARY OBJECTIONS FOR ARGUMENT To: Cumberland County Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Please strike from the November 23, 2005 Argument Court List Defendant's Preliminary Objections to Plaintiff's Complaint. Respectfully submitted, GOLDBERG KATZMAN, P.C. By Thomas J. Weber, Esquire Attorney 1. D. No. 58853 David M. Steckel, Esquire Attorney I.D. No. 82340 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Dated: November 15, 2005 Attorneys for Plaintiff, Gregory Scott Whiteford CERTIFICATE OF SERVICE 1 hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mary P. Patterson, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys for Defendant GOLDBERG KATZMAN, P.C. By; - v t Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff, Gregory Scott Whiteford Date: November 15, 2005 r = U't Ul i GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4950 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 14`x' day of February, 2006, upon consideration of Defendant's preliminary objections in the nature of a demurrer to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, J Wesley O y Jr., J. Thomas J. Weber, Esq. David M. Steckel, Esq. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff Thomas A. French, Esq. Timothy J. Nieman, Esq. Mary P. Patterson, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant /5 0 . ? ? ? 1 ? I GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 02-4950 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., February 14, 2006. In this civil action, an IRA account depositor has sued a financial institution as a result of the institution's refusal to maintain an interest rate of 10% on the account indefinitely.1 Plaintiffs complaint contains counts for a declaratory judgment, violation of Pennsylvania's Unfair Trade Practices Act and Consumer Protection Law, fraud, breach of contract, breach of fiduciary duty, quantum meruit, and promissory estoppel.2 For disposition at this time are Defendant's preliminary objections in the nature of a demurrer to Plaintiffs quantum meruit and promissory estoppel claims.' The ground for the demurrer is that "[a]s a matter of law, the doctrines of quantum meruit and promissory estoppel are inapplicable where the relationship between the parties is governed by an express contract."4 Defendant's preliminary objections were argued on January 11, 2006. For the reasons stated in this opinion, the preliminary objections will be denied. Complaint, T¶ 9-11, 16-18, filed October 10, 2002 (hereinafter Compl. ). 2 Compl. ¶T 21-26, 28-37, 39-44, 46-49, 51-53, 55-59, 61-65. Preliminary Objections to Plaintiffs Complaint, T¶ 1-6, filed December 9, 2002 (hereinafter Prelim. Obj. _). STATEMENT OF FACTS According to Plaintiffs complaint, in the early 1980s Plaintiff opened an individual retirement account with Defendant's predecessor which paid interest at the rate of ten percent per annum.5 Accounts of the type opened by Plaintiff eventually resulted in class action litigation, the gist of which was described by the Pennsylvania Supreme Court as follows: Between January 1982 and June 1984 Dauphin Bank offered certificates of deposit for individual retirement accounts which paid a variable rate of interest based on the yield of two-year treasury notes, but which would pay no less than 10% interest. Approximately 4,900 such accounts were open at the time this lawsuit began, and the bank now seeks to terminate these accounts and replace them with other investment vehicles paying a lower interest rate. At issue is whether the 10% CDs were sold with the understanding that they would be renewable every eighteen months until the IRA account holder withdrew this investment from his IRA account, or whether this "perpetual" renewal option was not a feature of the contract between the bank and the account holder. It is undisputed that the bank provided an IRA kit which contained a brochure which stated that the interest rate for the CD would not go below 10% as long as Dauphin Deposit offered an 18 month variable rate account, but the extent to which these brochures were made available or explained to customers is disputed by the parties. Dauphin Deposit Bank and Trust Co. v. Hess, 556 Pa. 190, 192-93, 727 A.2d 1076, 1077 (1999). Although the class action was settled,e Plaintiff avers that he opted out of the class.7 According to Plaintiffs complaint, the financial institution ultimately terminated the guaranteed interest rate feature of his accounts As noted, ' Prelim. Obi. ¶ 5. ' Compl. j¶ 3-7. a Compl. 114. ' Compl. 113. ' Comp]. T? 16-19. 2 Plaintiff's complaint consists of various counts, including breach of contract, quantum meruit, and promissory estoppel,9 and Defendant has demurred to the latter counts on the ground that they are inappropriate when an action is based upon a contract.10 DISCUSSION In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a pleading, the court "must accept all material facts set forth in the [pleading,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that" the position challenged by the demurrer can not prevail. Id. at 489, 653 A.2d at 621. If any lingering doubt remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the nonmoving party]." Presbyterian Medical Center v. Budd, 2003 PA Super. 323, ¶6, 832 A.2d 1066, 1070 (2003). Under Pennsylvania Rule of Civil Procedure 1020(c), "[c]auses of action ... may be pleaded in the alternative." Thus, although it may be true that a plaintiff can not recover on more than one theory in a given case, at the pleading stage he or she is not required to make an election as to that theory. See Braginetz v. Foreign Motor Sales, Inc., 76 Dauphin Co. 1 (1960). This principle has been emphasized by the Honorable Edward E. Guido of this court as follows: [In their preliminary objection,] Defendants' only argument is that quantum meruit relief is not available where the parties' relationship is founded on an express agreement. They have cited numerous cases which stand for this proposition. However, not one of those cases involve an objection to the pleadings. The reason is clear. Pennsylvania ° Compl. ¶T 46-49, 55-59, 61-65. 10 Prelim. Obj. ¶ 5. 3 Rule of Civil Procedure 1020(c) unequivocally provides that causes of action may be pleaded in the alternative. It has long been the law of this Commonwealth that "... plaintiffs should not be forced to elect a particular theory in pursuing a claim" at the pleadings stage. Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977). There is not one scintilla of doubt that Defendants' preliminary objection should be denied. Humbert v. Gates, 47 Cumberland L.J. 186, 187 (1998), aff'd, 760 A.2d 437 (Pa. Super. Ct. 2000). In the present case, as a more complete record is developed, Defendant's position that quasi-contract and promissory estoppel are not tenable theories upon which relief can be granted to Plaintiff may become more evident. However, such a conclusion at the complaint stage would not be warranted. ORDER OF COURT AND NOW, this 14`x' day of February, 2006, upon consideration of Defendant's preliminary objections in the nature of a demurrer to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas J. Weber, Esq. David M. Steckel, Esq. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff 4 Thomas A. French, Esq. Timothy J. Nieman, Esq. Mary P. Patterson, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED NOTICE TO PLEAD To: Gregory Scott Whiteford c/o David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a default judgment may be entered against 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 RHOADS & SINON LLP By: / / ar G ft'r! 13L1 Thomas A nch Mary P. Pa terson One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allftrst Financial, Inc. 599641.2 Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & STNON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL, DEMANDED ANSWER AND NEW MATTER NOW COMES, Defendant, Allfirst Financial, Inc., by and through its attorneys, Rhoads & Sinon LLP, alleges the following in support of its Answer and New Matter: 1. PARTIES Admitted and denied. It is admitted that Plaintiff, Gregory Scott Whiteford, is an adult individual. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments that Plaintiff has a residence address of 1611 Dooley Road, Whiteford, Maryland, 21160 and the same is denied. Proof, thereof, if relevant, is demanded at time of trial. 2. Admitted. Denied. The averments contained in Paragraph 3 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfrst Financial, Inc. is the successor-in-interest to Dauphin Deposit. It is admitted that Dauphin Deposit was the Plaintiff in a class action litigation. It is denied that that litigation involved issues similar to those presented in this case. It is admitted that the previous litigation was docketed in Cumberland County at No. 907-Civil-1994 and later appealed to the Pennsylvania Superior Court, which was docketed at No. 667-Harrisburg 1996 and that the case was later appealed to the Supreme Court of Pennsylvania. II. FACTS 4. Denied as stated. It is admitted that between January 1, 1982 and June 30, 1984, Dauphin Deposit held Individual Retirement Accounts ("IRA") and offered to the holders several different investment options. 5. Admitted and denied. It is admitted that one of the IRA investment options available between January 1, 1982 and June 30, 1984 was an 18-month variable rate account (the "Variable Rate Account") which paid a rate of interest based upon the average yield of two-year Treasury Notes, automatically renewable and guaranteed to pay a minimum interest rate of 10% so long as that investment option was still offered by Dauphin Deposit. It is further admitted that Plaintiffs funds were placed in that Variable Rate Account. After reasonable investigation, Defendant is without knowledge or information to sufficient to form a belief as to the truth of the averment that Plaintiff selected that account and the same is denied. It is denied that the above terms continued until the Variable Rate Account was withdrawn fully or otherwise terminated by the account holder. It is denied that the only mechanisms for termination of the Plaintiffs investment option were withdrawal or other termination by the account holder. To the contrary, the Dauphin Deposit reserved the right to discontinue offering the 18-month option for renewal. It is further denied that representatives of Dauphin Deposit, in promotional and advertising materials utilized by Dauphin Deposit to market its investment options, clearly indicated to Plaintiff that there would never be any type of maintenance fees or other charges levied upon account holders such as Plaintiff. -2- 6. Denied. After reasonable investigation, Defendant is without knowledge or information to sufficient to form a belief as to the truth of the averments contained in Paragraph 6 and the same are denied. Proof, therefore, if relevant, is demanded at time of trial. It is denied that Dauphin Deposit promotional materials did not limit or restrict a promise to pay a guaranteed minimum interest rate of 10 percent on the account. It is further denied that Plaintiff selected the variable rate account. 7. Admitted and Denied. It is admitted that Plaintiff entered into an IRA Agreement with Southern Pennsylvania Bank which contained a Disclosure Statement. It is further admitted that a copy of that disclosure statement has not been attached to Plaintiffs Complaint. Plaintiffs IRA Agreement, dated December 15, 1977, and the Disclosure Statement were entered into with Southern Pennsylvania Bank. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth of the averments that Plaintiff was provided with or executed a Disclosure Statement at the time his funds were placed in the variable rate account in 1984, that any Disclosure Statement was provided to Plaintiff by Dauphin Deposit or that the Disclosure Statement attached to Plaintiffs Complaint as Exhibit "A" is similar or identical to any Disclosure Statement provided to or executed by Plaintiff and the same are denied. Proof, therefore, if relevant, is demanded at time of trial. It is further denied that the Defendant is in possession of any Disclosure Statement executed by Plaintiff similar or identical to the one attached to the Complaint as Exhibit "A". Exhibit A, being a writing, speaks for itself and no response is required. 8. Denied as stated. Plaintiffs Variable Rate Account was automatically renewable for so long as Dauphin Deposit offered that particular account, meaning that the customer did not have to take action at the expiration at the end of the 18-month term of the investment option to -3- renew the account for an additional 18-month term at the variable and minimum rates described in Paragraph 5 of Plaintiff's Complaint. It is denied that the automatic renewability provision was for the convenience of the customer or that said term was not subject to termination by Dauphin Deposit. 9. Denied. Exhibit A, being a writing, speaks for itself and no response is required. Exhibit B, being a writing, speaks for itself and no response is required. By way of further response, it is denied that Plaintiff was provided with the Disclosure Statement attached to the Complaint as Exhibit "A", or that the numerous promotional and advertising materials that were utilized by Dauphin Deposit or that the representations of employees and/or agents of Dauphin Deposit, guaranteed Plaintiff a minimum interest rate of 10% on Plaintiff's variable rate account, including all automatic renewals thereof, until the account was fully withdrawn or otherwise terminated by Plaintiff. 10. Denied. The averments contained in Paragraph 10 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit. 11. Denied as stated. It is admitted that Dauphin Deposit had initiated a class action declaratory judgment action in the Cumberland County Court of Common Pleas regarding Plaintiff s IRA account. It is denied that the purpose of that action was to terminate any obligation to continue offering the 18-month Variable Rate Account with guaranteed minimum interest rate of 10 percent. 12. Denied as stated. It is admitted that members of the class brought a counterclaim seeking to require Dauphin Deposit to continue to pay a guaranteed minimum interest rate of 10 percent. It is denied that Dauphin Deposit had any obligation to do so. -4- 13. Admitted. 14. Admitted and denied. It is admitted that following commencement of the trial in Cumberland County, the parties reached a settlement of the underlying litigation. It is further admitted that the settlement resolved the issues between the parties. It is denied that the Settlement Agreement terms altered Dauphin Deposit's alleged obligations pertaining to the variable rate account. 15. Denied as stated. The averments contained in Paragraph 15 constitute conclusions of law to which no response is required and the same are denied. To the extent they are deemed to be factual in nature, it is denied that Plaintiff was not a member of the class and, therefore, that the settlement was not binding on him such that the settlement did not interfere with this right to receive the 10 percent minimum guaranteed interest rate on his Variable Rate Account. It is admitted that Plaintiff continued receiving a minimum 10 percent interest rate until October 12, 2000. 16. Exhibit C, being a writing, speaks for itself and no response is required. 17. Exhibit D, being a writing, speaks for itself and no response is required. 18. Exhibit E, being a writing, speaks for itself and no response is required. 19. Denied. It is denied that Defendant acted contrary to the terms of Plaintiffs IRA or that, Allfirst Financial, Inc. terminated Plaintiff s account on October 12, 2000 and converted his funds into a separate and distinct 18 month variable rate account which does not provide a guaranteed minimum interest rate of 10 percent. COUNT I - REQUEST FOR DECLARATORY JUDGMENT 20. Defendant incorporates by reference its answer to Paragraphs 1 through 19 as though set forth herein at length. -5- 21. Admitted and denied. It is admitted that Plaintiff was notified that his 18-month Variable Rate Account #8-700-024-0480001 would mature and that his funds were transferred into a separate 18-month variable rate account which neither guaranteed nor is currently providing a minimum interest rate of 10 percent. It is denied that Defendant terminated Plaintiffs 18-month Variable Rate Account effective October 12, 2000 and transferred his funds into a separate 18 month variable rate account which neither guarantees nor is currently providing a minimum interest rate of 10 percent, but rather, which account is currently earning approximately 2 percent. The allegation that Defendant unlawfully transferred Plaintiff's retirement funds constitutes a conclusion of law to which no response required and the same is denied. 22. Denied. The averments contained in Paragraph 22 constitute conclusions of law to which no response is required and the same are denied. To the extent they are deemed to be factual in nature, it is denied that Allfirst Financial, Inc. ever did or is required to provide Plaintiff with a minimum guaranteed interest rate of 10 percent pursuant to the contractual terms of Plaintiff's IRA. 23. Denied. The averments contained in Paragraph 23 constitute conclusions of law to which no response is required and the same are denied. To the extent they are deemed to be factual in nature, it is denied that Allfirst Financial, Inc. terminated Plaintiff's Variable Rate Account on October 12, 2000, or that such alleged termination was unlawful or a breach of Plaintiff s IRA Agreement. 24. Denied. The averments contained in Paragraph 24 constitute conclusions of law to which no response is required and the same are denied. 25. Denied. The averments contained in Paragraph 25 constitute conclusions of law to which no response is required and the same are denied. -6- 26. The averments contained in Paragraph 26 constitute conclusions of law to which no response is required and the same are denied. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. COUNT II - VIOLATION OF UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW 27. Defendant incorporates by reference its answer to Paragraphs 1 through 26 as though set forth herein at length. 28. Denied as stated. It is admitted that between January 1, 1982 and June 30, 1984, Dauphin Deposit held Individual Retirement Accounts ("IRA") and solicited, marketed, advertised, offered, and sold to the general public several different investment options 29. Denied. It is denied that when Dauphin Deposit solicited, marketed, advertised, offered, and sold the Variable Rate Account, it represented, promised, and guaranteed that the 18- month investment option would bear a minimum interest rate on all monies deposited of 10 percent per annum compounded quarterly and would be automatically renewed unless fully withdrawn or otherwise terminated by the account holder. It is further denied that Dauphin Deposit represented, promised, and guaranteed that there would never be any type of maintenance fees or other charges levied upon account holders. 30. Denied. It is denied that authorized representatives, agents, and/or employees of Dauphin Deposit, acting in the course of and in furtherance of their employment, and under the express direction, control, and supervision of management, promised and guaranteed that Plaintiff's Variable Rate Account would bear a minimum interest rate on all monies deposited of 10 percent -7- per annum compounded quarterly and would be automatically renewed unless fully withdrawn or otherwise terminated by the account holder. 31. Denied as stated. It is admitted at the time Dauphin Deposit was marketing and selling the Variable Rate Account, it was also marketing and selling other types of accounts that offered higher initial interest rates than the 18-month Variable Rate Account, but without any guaranteed minimum rate of interest. 32. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 32 and the same are denied. Proof, thereof, if relevant, is demanded at time of trial. 33. Denied as stated. It is denied that Dauphin Deposit represented that the interest rate earned and all monies in Plaintiff's Variable Rate Account would never fall below 10 percent per annum and would be renewed automatically until fully withdrawn or otherwise terminated by him. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in Paragraph 33 and the same are denied. Proof, thereof, if relevant, is demanded at time of trial. 34. Denied. The averments contained in Paragraph 34 that Allfirst Financial, Inc., is the successor-in-interest to Dauphin Deposit constitutes a conclusion of law to which no response is required and the same is denied. It is denied that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit. It is further denied that on October 12, 2000, subsequent to an exchange of correspondence with the Plaintiff, which exchange is also denied, that Allfirst Financial, Inc. failed to renew Plaintiff's Variable Rate Account. 35. Denied. The allegations contained in Paragraph 35 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. -8- terminated Plaintiffs Variable Rate Account or that Dauphin Deposit made representations, promises and guarantees which conduct constitutes violations of the Unfair Trade Practices Act and the Consumer Protection Law. 36. Denied. The averments contained in Paragraph 36 constitute conclusions of law to which no response is required and the same are therefore denied. It is specifically denied that Plaintiff has suffered actual damages in the amount of the difference between the interest Plaintiff would have earned on his accounts since October 12, 2000, with a minimum guaranteed interest rate of 10 percent and the interest Plaintiff has earned since October 12, 2000 in the account to which his retirement funds have been transferred. 37. Denied. The averments contained in Paragraph 37 constitute conclusions of law to which no response is required and the same are denied. Plaintiff is not entitled to an award of three times his actual damages or attorneys' fees. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. COUNT III - FRAUD 38. Defendant incorporates by reference its answer to Paragraphs 1 through 37 as though set forth herein at length. 39. Denied. The averments contained in Paragraph 39 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit induced Plaintiff to invest his money with a minimum interest rate lower than that generally prevailing, ]mowing but intentionally not revealing that it would terminate Plaintiff s Variable Rate Account when interest rates declined. -9- 40. Denied. The allegations contained in Paragraph 40 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit and its representatives, agents and employees took actions to coerce and intimidate persons, including Plaintiff, to give up their rights. 41. Denied. The allegations contained in Paragraph 41 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit or its authorized representatives, agents, and employees, took actions intended to deceive Plaintiff or induce him to select any particular investment option. 42. Denied. The averments contained in Paragraph 42 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit or its representatives, agents, or employees made misrepresentations. 43. Denied. The averments contained in Paragraph 43 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit or that it has assumed the liability for any of Dauphin Deposit's alleged actions, which actions are also denied. 44. Denied. The averments contained in Paragraph 44 constitute conclusions of law to which no response is required and the same are denied. Plaintiff is not entitled to an award of punitive damages. By way of further response, after reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averment contained in Paragraph 44 that Plaintiff has sustained actual damages. Proof, thereof, if relevant, is demanded at time of trial. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. -10- COUNT IV - BREACH OF CONTRACT 45. Defendant incorporates by reference its answer to Paragraphs 1 through 44 as though set forth herein at length. 46. Denied. The averments contained in Paragraph 46 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit and that Plaintiff entered into a contract with Dauphin Deposit which was later assumed by Allfirst Financial, Inc. as Dauphin Deposit's successor-in- interest, providing for an IRA in the form of an 18-month variable rate account, automatically renewable without any action on the part of Plaintiff, which account was guaranteed to provide a minimum interest rate of 10 percent per annum compounded quarterly until fully withdrawn or otherwise terminated by Plaintiff. It is further denied that a copy of said alleged contract is in the possession of Defendant. 47. Denied. The averments contained in Paragraph 47 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc terminated Plaintiffs Variable Rate Account. 48. Denied. The averments contained in Paragraph 48 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. had or breached any agreement with Plaintiff. By way of further response, after reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averment contained in Paragraph 48 that Plaintiff has sustained actual damages. Proof, thereof, if relevant, is demanded at time of trial. -11- 49. Denied as stated. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 49 and the same are denied. Proof, if relevant, is demanded at time of trial. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. COUNT V - BREACH OF FIDUCIARY DUTY 50. Defendant incorporates by reference its answer to Paragraphs I through 49 as though set forth herein at length. 51. Denied. The averments contained in Paragraph 51 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfrrst Financial, hie. is custodian of Plaintiffs IRA account or that it acts as a trustee and fiduciary with regard to that account. 52. Denied. The averments contained in Paragraph 52 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. terminated Plaintiff's Variable Rate Account. 53. Denied. The averments contained in Paragraph 53 constitute conclusions of law to which no response is required and the same are denied. By way of further response, after reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averment contained in Paragraph 53 that Plaintiff has sustained actual damages. Proof, thereof, if relevant, is demanded at time of trial. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. -12- COUNT VI - QUANTUM MERUIT 54. Defendant incorporates by reference its answer to Paragraphs 1 through 53 as though set forth herein at length. 55. Denied. The averments contained in Paragraph 55 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit wrongfully and intentionally caused Plaintiff to maintain Plaintiffs Variable Rate Account by representing that there was a minimum guaranteed interest rate of 10 percent per annum compounded quarterly and automatically renewable for as long as Plaintiff maintained the account. 56. Denied. The averments contained in Paragraph 56 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit or that it has assumed any responsibilities or duties commensurate with maintaining Plaintiff s Variable Rate Account. 57. Denied. The averments contained in Paragraph 57 constitute conclusions of law to which no response is required and the same are denied. 58. Denied. The averments contained in Paragraph 58 constitute conclusions of law to which no response is required and the same are denied. It is denied that Allfirst Financial, Inc. retained the conferred benefit of Plaintiffs deposits in his Variable Rate Account. It is further denied that Dauphin Deposit and its agents, representatives and employees guaranteed a variable interest rate not to fall below 10 percent per annum compounded quarterly and automatically renewable until fully withdrawn or otherwise terminated by the account holder. 59. Denied. The averments contained in Paragraph 59 constitute conclusions of law to which no response is required and the same are denied. -13- WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. COUNT VII - PROMISSORY ESTOPPEL 60. Defendant incorporates by reference its answer to Paragraphs 1 through 59 as though set forth herein at length. 61. Denied. The averments contained in Paragraph 61 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit and its agents, representatives and employees misrepresented to Plaintiff that he was guaranteed a variable interest rate on his Variable Rate Account not to fall below 10 percent compounded quarterly until Plaintiff withdrew or otherwise terminated his Variable Rate Account. 62. Denied. The averments contained in Paragraph 62 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit's representatives, agents and employees made misrepresentations which deceived Plaintiff. 63. Denied. The averments contained in Paragraph 63 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit's authorized agents and employees made misrepresentations 64. Denied. The averments contained in Paragraph 64 constitute conclusions of law to which no response is required and the same are denied. It is denied that Dauphin Deposit made misrepresentations or that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit. 65. Denied. The averments contained in Paragraph 65 constitute conclusions of law to which no response is required and the same are denied. By way of further response, after reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to -14- the truth of the averment contained in Paragraph 65 that Plaintiff has sustained actual damages. Proof, thereof, if relevant, is demanded at time of trial. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropriate. NEW MATTER 66. Plaintiffs claims are barred by the applicable statutes of limitations or statutes of repose. 67. Plaintiff has failed to state a claim upon which relief can be granted. 68. Plaintiffs claims for quantum meruit and promissory estoppel fail to state a claim in that Plaintiff has alleged the existence of valid contract. 69. Allfirst Financial, Inc. is not the successor-in-interest to Dauphin Deposit Bank. 70. All actions taken with regard to Plaintiff's Variable Rate Account and IRA were in accordance with properly executed bank documents. 71. Plaintiff's losses, if any, were caused by persons, firms or corporations other than Answering Defendant and for whom Answering Defendant is not responsible or liable. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with costs and fees and such other relief as is appropri ate. RHAiPy;. O/ADS & SINON LLP By. ' ??n61 A. French Patterson One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc_ VERIFICATION Kenneth Krach, Esquire, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 ASSoC,"A'lsz Cel-) f U relating to unswom falsification to authorities, that he is the a Vice President and, rCounsel of M&T Bank, that he makes this verification by his authority and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of his knowledge, information and belief. /l Kenneth Krach, Esquire CERTIFICATE OF SERVICE I hereby certify that on April 14`h, 2006, a true and correct copy document was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 ,,, ?- , ?-. _-, - / --1 Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire 1. D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff GREGORY SCOTT WHITEFORD, Plaintiff, V. ALLFIRST FINANCIAL, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-4950 : JURY TRIAL DEMANDED Defendant. PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, Gregory Scott Whiteford, by and through his counsel, Goldberg Katzman, P.C., who files this Answer to Defendant's New Matter, and pursuant thereto states: 66. Defendant's averments in Paragraph 66 constitute legal conclusions to which no response is required. 67. Defendant's averments in Paragraph 67 constitute legal conclusions to which no response is required. 68. Defendant's averments in Paragraph 68 constitute legal conclusions to which no response is required. 69. Defendant's averments in Paragraph 69 constitute legal conclusions to which no response is required. To the extent anything factual is averred, it is denied and strict proof thereof is demanded at trial. f - 70. Defendant's averments in Paragraph 70 constitute legal conclusions to which no response is required. To the extent anything factual is averred, it is denied and strict proof thereof is demanded at trial. 71. Defendant's averments in Paragraph 71 constitute legal conclusions to which no response is required. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for all of the relief set forth in the Complaint. Respectfully submitted, GOLDBERG KATZMAN, P.C. Date: May 2, 2006 By: v I /? Thomas J. Weber, Esquire Attorney I.D. 58853 David M. Steckel, Esquire Attorney I.D. 82340 320 Market Street, Strawberry Square P,O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff, Gregory Scott Whiteford CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mary P. Patterson, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys for Defendant GOLDBERG KATZMAN, P.C. By: - lam' v \ / Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff, Gregory Scott Whiteford Date: May 2, 2006 I - -r rl) J i{1J Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT NOW COMES, Defendant, Allfirst Financial, Inc., by and through its counsel, Rhoads & Sinon, LLP, and files the within Motion for Summary Judgment as follows: 1. This is an action brought by Plaintiff, Gregory Scott Whiteford ("Whiteford") arising out of his ownership of an 18 Month Variable Rate Account #8-700-024-0480001. 2. Plaintiff sued Allfirst Financial, Inc. the holding company of Allfirst Bank. I. BACKGROUND 3. On July 15, 1974, Southern Pennsylvania National Bank was converted into a Pennsylvania bank and trust company named Southern Pennsylvania Bank. See Brief in Support of Motion for Summary Judgment, Exhibit "G" (Certified Pennsylvania Department of State Records of Conversion to Southern Pennsylvania Bank). 4. On or about December 15, 1977, Mr. Whiteford established an IRA at the Delta Branch of Southern Pennsylvania Bank. See Brief in Support of Motion for Summary Judgment, Exhibit "A" (Southern Pennsylvania Bank IRA documents). 624540.1 5. Dauphin Deposit Corporation was incorporated on October 28, 1974 as the parent/holding company for Dauphin Deposit Bank and Trust Company ("Dauphin Deposit"). See Brief in Support of Motion for Summary Judgment, Exhibit "M" (Certified Pennsylvania Department of State Records of incorporation of Dauphin Deposit Corporation). 6. On October 1, 1982, Southern Pennsylvania Bank merged into Dauphin Deposit Bank and Trust Company. See Brief in Support of Motion for Summary Judgment, Exhibit "H" (Certified Pennsylvania Department of State Records of Southern Pennsylvania Bank merger into Dauphin Deposit Bank and Trust Company). 7. Dauphin Deposit did not offer the same IRA investment options as Southern Pennsylvania Bank. 8. Dauphin Deposit offered several other investment options, including an 18 Month Variable Rate Account with a guaranteed minimum rate of ten percent (10%) interest ("18 Month Variable Rate Account"). 9. Dauphin Deposit offered the 18 Month Variable Rate Account from January 1, 1982 until June 30, 1984. 10. When Mr. Whiteford's Southern Pennsylvania Bank established IRA matured, Dauphin Deposit automatically transferred it into an 18 Month Variable Rate Account. 11. IRA's were automatically transferred into available Dauphin Deposit accounts. 12. Dauphin Deposit Bank and Trust Company was acquired by First National Bank of Maryland on November 13, 1998. See Brief in Support of Motion for Summary Judgment, Exhibit "I" (Certified United States Office of the Comptroller of the Currency Records of Dauphin Deposit Bank and Trust Company merger into First National Bank of Maryland). -2- 13. Dauphin Deposit Corporation was merged into First Maryland Bancorp on July 8, 1997. See Brief in Support of Motion for Summary Judgment, Exhibit (Certified Maryland Department of Assessments and Taxation and Pennsylvania Department of State Records of Dauphin Deposit Corporation merger into First Maryland Bancorp). 14. First Maryland Bancorp. was then merged into Allfirst Financial, Inc. on or about September 15, 1999. See Brief in Support of Motion for Summary Judgment, Exhibit "O" Certified Maryland Department of Assessments and Taxation Records of First Maryland ( Bancorp. merger into Allfirst Financial, Inc.). 15. First National Bank of Maryland was renamed FMB Bank on Decen ?ber 31, 1998 and then renamed Allfirst Bank on June 28, 1999. See Brief in Support of Motion I',for Summary Judgment, Exhibits "J" and "K" (Office of the Comptroller of the Currency Records of First National Bank of Maryland conversion to a state bank and name change to FMB Bank; Certified Maryland Department of Assessments and Taxation Records of FMB Bank n e change to Allfirst Bank.). 16. In 2004 Allfirst Financial, Inc. was acquired by M&T Bank Corporation. See Brief in Support of Motion for Summary Judgment, Exhibit "P" (Certified Delaware Department of State Records of Allfirst Financial, Inc. merger into M&T Bank Corporation). 17. Allfirst Bank was acquired by Manufacturers and Traders Trust Company, trademarked, M&T Bank. See Brief in Support of Motion for Summary Judgme*, Exhibit "L" (Certified Pennsylvania Department of State Records of Allfirst Bank merger into and Traders Trust Company, trademarked, M&T Bank). 18. Responsibility for Dauphin Deposit IRAs passed to First Nati?nal Bank of Maryland which was renamed Allfirst Bank and then to M&T Bank. -3- 19. At no time did any of the parent/holding companies, including Allfirst Financial, Inc., have any control over or interest in the IRAs held by the banks. 20. Dauphin Deposit was the Plaintiff in a class action litigation involving the 18 month variable rate account and members of the class brought a counter-claim against Dauphin Deposit, which litigation was docketed at Court of Common Pleas of Cumberland County number 907-Civil-1994, and later appealed to the Superior and Supreme Courts of the Commonwealth of Pennsylvania. 21. Plaintiff opted out of the class at the time of the litigation. 22. Following commencement of trial in Cumberland County, the part?es reached a settlement of the underlying litigation. 23. On August 28, 2000, Allfirst Bank notified Mr. Whiteford that th class action litigation had been settled and offered to him the same settlement options that wore offered to Class A members. See Brief in Support of Motion for Summary Judgment, Exhibi "B" (Allfirst Bank's August 28, 2000 correspondence to Mr. Whiteford with attachments). 24. By letter dated September 27, 2000, Allfirst Bank notified Mr. Whiteford that his 18 month variable rate account #8-700-024-0480001 would mature on October 12000. See Brief in Support of Motion for Summary Judgment, Exhibit "C" (Allfirst September 27, 2000 ?' correspondence). 25. Allfirst Bank continued providing Mr. Whiteford with the 10% minimum interest until October 12, 2000. 26. On October 2, 2000, Mr. Whiteford wrote a letter to Allfirst Bank advising it that he intended to sue the bank if it discontinued guaranteeing the 10% interest on This 18 month -4- variable rate account. See Brief in Support of Motion for Summary Judgment, Exhibit "D" (Whiteford October 2, 2000 correspondence). 27. He further indicated that "Allfirst Bank knew or should have known what they were buying when they bought Dauphin Bank [sic]." 28. Gregory K. Thoreson, Senior Vice President and General Counsel of Allfirst Bank advised Mr. Whiteford on October 11, 2000 that "in 1994 Dauphin Deposit Bank and Trust Company (now, Allfirst Bank) and a class of over 4000 customers went to court Ito determine whether the bank had the right to terminate an 18 Month Variable Rate CD held as 0 investment by the class members in their IRA custodial accounts...." See Brief in Support f Motion for Summary Judgment, Exhibit "B" (Thoreson October 11, 2000 correspondence). 29. Mr. Thoreson disagreed with Mr. Whiteford's position that there was any guarantee of a minimum rate which existed with respect to anything except the original 18 month term of the CD and offered Mr. Whiteford the same settlement options given to Class A participants in the settlement. 30. Mr. Whiteford's funds were thereafter invested in an 18 month variable rate account which did not provide a guaranteed minimum interest rate of 10%. 31. On October 20, 2000, Allfirst Bank provided Mr. Whiteford with is Certificate of Deposit relating to the October 12, 2000 deposit and the Truth in Savings Disclosure for the Certificate of Deposit. See Brief in Support of Motion for Summary Judgment Exhibit "F" (October 20, 2000 Allfirst Bank correspondence and attachments). -5- II. PROCEDURAL HISTORY 32. On October 10, 2002, Mr. Whiteford filed a Complaint, nami Defendant, Allfirst Financial, Inc., Allfirst Bank's holding company. See Brief Motion for Summary Judgment, Exhibit "Q" (Complaint). 33. In the Complaint, Plaintiff alleges that Allfirst Financial, Inc. is the interest to Dauphin Deposit Bank and Trust Company and that it therefore and responsibilities of Dauphin Deposit with respect to Plaintiff's IRA...." 10). 34. The Complaint seeks a Declaratory Judgment (Count 1), and as the sole Support of iccessor-in- d the duties int 113 and is causes of action for violation of the Unfair Trade Practices Act and Consumer Protection I.* (Count II), fraud (Count III), breach of contract (Count IV), breach of fiduciary duty (Count) V), quantum meruit (Count VI), and promissory estoppel (Count VII). i 35. Allfirst Financial, Inc. filed Preliminary Objections to the Complaint which were denied by Order dated February 14, 2006. 36. Allfirst Financial, Inc. filed its Answer and New Matter on or able ut April 19, 2006. See Brief in Support of Motion for Summary Judgment, Exhibit "R" (Anse er and New Matter). 37. Allfirst Financial, Inc. specifically denied that it was the successor4n-interest to Dauphin Deposit. (Answer and New Matter 113 and 10). 38. In its New Matter, Allfirst Financial, Inc. again stated that it I was not the successor-in-interest to Dauphin Deposit Bank and that Plaintiff's losses, if any, were caused by persons, firms or corporations other than Answering Defendant and for who Answering Defendant is not responsible or liable. (Answer and New Matter IT 69 and 71). -6- 39. On May 17, 2005, Plaintiff served Interrogatories and a Request for Production of Documents. See Brief in Support of Motion for Summary Judgment, Exhibit "S" (Interrogatories) and Exhibit "T" (Request for Production of Documents). i 40. In his Interrogatories, the Plaintiff asked for corporate information relating to Allfirst Financial, Inc, but also requested information concerning the identities of employees of Dauphin Deposit or Allfirst Bank who participated in communications involving the 18 month variable rate account and documents disseminated by banks including Allfirst Bank. (Interrogatory numbers 1, 3 and 5). Plaintiff Filed Suit Against The Wrong Party 41. Plaintiff's IRA established at Southern Pennsylvania Bank was thereafter transferred to successor banks as Follows: to Dauphin Deposit Bank and Trust Company through a merger; to First National Bank of Maryland through a merger (name changed to FMB Bank); to Allfirst Bank by a name change; and to Manufacturers and Traders Trust Company (trademarked M&T Bank) through a merger. 42. Plaintiff's IRA was never under the custody or control of the holding companies, which merged as follows: Dauphin Deposit Corporation was incorporated on October 28, 1974 and merged into First Maryland Bancorp.; First Maryland Bancorp. merged into Allfirst Financial, Inc.; and Allfirst Financial, Inc. merged into M&T Bank Corporation. 43. Neither Allfirst Financial, Inc. nor its predecessors or successors ever had custody of Plaintiff's IRA account or the involved investment options. 44. Allfirst Financial, Inc. is not a proper party to this action. 45. Allfirst Bank, a separate and distinct legal entity, was the custodian of Mr. Whiteford's IRA and was the party which should have been sued in this matter.' -7- 46. All correspondence between Mr. Whiteford regarding his IRA was with Allfirst Bank, and he specifically stated that he would sue the bank, not the parent/holding company. 47. On October 3, 2005, counsel for Allfirst Financial, Inc. advised Mr. Whiteford's counsel that they had sued the wrong party. See Brief in Support of Motion for Summary Judgment, Exhibit "U" (October 3, 2005 correspondence from counsel for Allfirst Financial, Inc. to counsel for Mr. Whiteford). 48. No action was taken with regard to that letter. 49. The statute of limitations has run and Plaintiff cannot now substitute the correct party. 50. The courts will allow an amendment to change the name of a party after the statute of limitations has run only to correct the name, but not to add a new party. 51. Plaintiff at all times knew the identity of the correct party. 52. Allfirst Bank and Allfirst Financial, Inc. are two separate entities with separately held assets. WHEREFORE, Allfirst Financial, Inc. respectfully requests that the Court grant its Motion for Summary Judgment and dismiss Plaintiff's Complaint with prejudice. RHOADS & SINON .? By: Tho a A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 One South Market Square, 12t' Flr. P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -8- CERTIFICATE OF SERVICE I hereby certify that on November 16, 2006, a true and correct copy document was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Jodi L. oons C`ti t -, -rr i T?1 -'K ro ? d .mow. .w Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire 1. D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff GREGORY SCOTT WHITEFORD,- Plaintiff, V. ALLFIRST FINANCIAL, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED MOTION OF PLAINTIFF, GREGORY SCOTT WHITEFORD, FOR LEAVE OF COURT TO AMEND COMPLAINT PURSUANT TO Pa.R.C.P. No. 1033 AND NOW, comes the Plaintiff, Gregory Scott Whiteford, by and through his counsel, Goldberg Katzman, P.C., who files the herein Motion for Leave of Court to Amend the Complaint pursuant to Pa.R.C.P. No. 1033, and in support thereof states: 1. Plaintiff s instant action has its roots in a declaratory judgment class action that was filed in this Court by Dauphin Deposit Bank and Trust Company ("Dauphin Deposit") in or around 1996 against numerous holders of an 18 month variable rate account which was automatically renewable and guaranteed to pay a minimum interest rate of 10% until the IRA was withdrawn fully or otherwise terminated by the account holder. 2. Plaintiff, Gregory Scott Whiteford, opted out of the class described in the aforementioned paragraph. 3. Plaintiff timely filed his Complaint in October 2002, less than two (2) years after Defendant Allfirst - which is one of the companies that succeeded Dauphin Deposit - terminated Plaintiff's IRA. 4. Plaintiff filed this action against Allfirst Financial, Inc., who he believed was the proper parry Defendant. 5. In October 2005, Defendant's counsel wrote to Plaintiffs counsel regarding the continuation of the parties' ongoing settlement discussions. Near the end of that letter, Defendant's counsel informed Plaintiff s counsel that Allfirst Bank was the proper Defendant in this case and not Allfirst Financial, Inc. A copy of that letter is attached hereto as Exhibit "A." 6. Subsequent thereto, and continuing through the summer of 2006, counsel for the parties continued to engage in numerous settlement discussions in hopes of resolving this case amicably and not retrying a case that was in this Court approximately a decade ago. 7. It is also worth noting that in Defendant's brief in support of preliminary objections, which it filed on or about November 14, 2005, Defendant failed to raise the issue of the improper parry being sued in this case. 8. Defendant also failed to raise this issue with the Court when the parties appeared on January 11, 2006 to argue Defendant's preliminary objections. 9. Without providing any advanced notice, Defendant then filed a motion for summary judgment based entirely on its belief that Plaintiff sued the wrong party, and that, if correct, Plaintiff should not be permitted to amend the Complaint accordingly. 10. Plaintiff respectfully submits that, if Defendant is correct that Allfirst Bank is the proper parry Defendant in this case, he should be granted the leave of court he now requests to amend his Complaint so that the merits of this case can be litigated and Mr. Whiteford can realize a final disposition of the issues concerning Plaintiff s IRA. 11. Permitting the requested amendment would cause no undue prejudice to Allfirst Bank as it has been aware of this litigation since its inception in October 2002, and it would be illogical to presume it has not remained aware of this litigation up until the present day. 12. Further, Allfirst Bank has been aware of this litigation since well before Mr. Whiteford filed this lawsuit. Specifically, Allfirst Bank would have been aware of the class action litigation, which involved the exact same issues as does this case, when it took over Maryland Bancorp. in September 1999. Allfirst Bank was also well aware of Mr. Whiteford and his account when mutual correspondence was exchanged in September and October 2000. See Exhibits C, D and E to Complaint. 13. Defendant states in its brief that this amendment should not be allowed because the statute of limitations has run. However, Plaintiff filed his Complaint in October 2002 - prior to the expiration of the statute of limitations. Defendant did not inform Plaintiff that Allfirst Bank was the proper party Defendant until October 2005 - three (3) years after the statute of limitations expired. Had Plaintiff attempted to amend the Complaint immediately after receiving said letter, Defendant would have undoubtedly made the same statute of limitations argument it is making now. The fact is Allfirst Bank has known about the issues involving Plaintiff's IRA since prior to the inception of this litigation; has known about this litigation since the date is was filed; and has continued to remain abreast of the case as evidenced by the numerous settlement discussions which took place between counsel. 14. It would be a gross injustice to allow Allfirst to escape potential liability based upon the argument it has now raised in its motion for summary judgment. 15. In a case analogous to this, the court focused on the assets which are potentially subject to liability, and if they are essentially the same the requested amendment is allowed - even after the statute of limitations has run. See Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (Pa. 1963). 16. Because there would be no unfair surprise or prejudice to Allfirst Bank by permitting the requested amendment, Plaintiff respectfully submits that the subject Motion should be granted. 17. Pursuant to L.R. 208.2(d), undersigned counsel attempted to contact, and left a phone message for, Defendant's counsel on December 11, 2006 for purposes of, inter alia, seeking her concurrence with the filing of this Motion. However, as of the time this Motion is being filed, no return phone call was received. 18. Pursuant to L.R. 208.3(a)(2), undersigned counsel represents that The Honorable J. Wesley Oler, Jr. previously issued an Order in this case, dated February 14, 206, denying Defendant's preliminary objections after oral argument that was heard by Judge Oler and Judge Kevin A. Hess. WHEREFORE, Plaintiff respectfully submits that the herein Motion should be granted and, pursuant thereto, he should be permitted to amend his Complaint to show Allfirst Bank as the Defendant in place of Allfirst Financial, Inc. Respectfully submitted, GOLDBERG KATZMAN, P.C Date: December 12, 2006 By: -?2f - Thomas J. Weber, Esquire Attorney I.D. 58853 David M. Steckel, Esquire Attorney I.D. 82340 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff, Gregory Scott Whiteford EXHIBIT «A99 .-w ors ;?.. & SINON LLP Mary P. Patterson ph (717) 231-6623 fx (717) 231-6626 mpatterson@rhoads-sinon.com FamNo: 6635/17 October 3, 2005 Re: Whiteford v. Al first Financial, Inc., Docket No. 02-4950 Thomas J. Weber, Esquire VIA FACSIMILE Goldberg Katzman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Dear Tom: I am writing to follow up on our request that, after consultation with Mr. Whiteford, you provide us with a demand in the above-referenced matter. It is my understanding that Mr. Whiteford had gotten back to you but that you were revisiting the issue of the demand with him. We are preparing discovery requests to be forwarded to you but prefer to receive your demand prior to serving those requests. The Bank still believes that it would be in the best interests of all parties to resolve this litigation. However, the Bank is confident that if settlement cannot be reached it will ultimately prevail in this matter. Our investigation to date gives no indication that Mr. Whiteford received a disclosure statement similar to the one attached to his complaint. Moreover, in preparing our responses to your outstanding discovery requests, we noted that you have sued the holding company, Allfirst Financial, Inc. rather than Allfirst Bank. Will you please advise me at your earliest convenience when we can expect to receive your demand in the above-referenced matter. Thank you for your attention to this regard and please feel free to call me if you have any questions or comments. Sincerely, RHoADs & SINON LLP By: M . Patterson cc: Kenneth Krach, M&T Bank Timothy Nieman, Esquire 579590.1 Rhoads 6a Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square.* P.O. Box 1146 L?---.-L..-- nA 1>l nn 11., _ ./. »>\ - -- 1 ....-1 -- - . . CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mary P. Patterson, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys for Defendant GOLDBERG KATZMAN, P.C. By: Thomas J. Weber, Esquire Attorney I.D. #58853 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff, Gregory Scott Whiteford Date: December 12, 2006 r? # ?3 ? ?1 ? 'c f ,,,} • y'}J `- ?J ? .iC GREGORY SCOTT IN THE COURT OF COMMON PLEAS OF WHITEFORD, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW ALLFIRST FINANCIAL, INC., Defendant NO. 02-4950 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of December, 2006, upon consideration of the Motion of Plaintiff, Gregory Scott Whiteford, for Leave of Court To Amend Complaint Pursuant to Pa. R.C.P. No. 1033, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. J. Thomas J. Weber, Esq. ,/6avid M. Steckel, Esq. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff Mary P. Patterson, Esq. 1 South Market Square Harrisburg, PA 17101 Attorney for Defendant J :rc BY THE COURT, ? c :Qi in r1 ow,,agaoz PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the within matter for the next available Argument Court. CAPTION OF CASE (entire caption must be stated in full) GREGORY SCOTT WHITEFORD, Plaintiff : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA V. ALLFIRST FINANCIAL, INC., Defendant : NO. 02-4950 : JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant Allfirst Financial, Inc.'s Motion for Summary 2. Identify counsel who will argue case: a. for plaintiff. David M. Steckel, Esquire, GOLDBERG, KATZMAN & SHIPMAN, P. C., 320 Market Street, P.O. Box 1268, Harrisburg, PA 17108-1268 b. for defendant: Thomas A. French, Esquire, RHOADS & SINON LLP, One South Market Square, 12th Floor, Harrisburg, PA 17101 Mary P. Patterson, Esquire, RHOADS & SINON LLP, One South Market Square, 12th Floor, Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 24, 2007 Mar P tterson Date: December 29, 2006 Attorney for Allfirst Financial, Inc. 631803.1 • 1 11 ?? M ill 4 k Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 : JURY TRIAL DEMANDED RESPONSE OF DEFENDANT ALLFIRST FINANCIAL, INC. TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT PURDSUANT TO Pa. R.C.P. No. 1033 NOW COMES, Defendant, Allfirst Financial, Inc., by and through its counsel, Rhoads & Sinon, LLP, and files the within Response of Defendant Allfirst Financial, Inc. to Plaintiff's Motion for Leave to Amend the Complaint pursuant to Pa. R.C.P. No. 1033 as follows: 1. Admitted and Denied. It is admitted that a declaratory judgment class action was filed in this court by Dauphin Deposit Bank and Trust Company ("Dauphin Deposit") in or around 1996 against numerous holders of an 18 month variable rate account ("variable rate account'). It is denied that the variable rate account was automatically renewable and guaranteed to pay a minimum interest rate of 10% until the IRA was withdrawn fully or otherwise terminated by the account holder. It is further denied that the instant action has its roots in that declaratory judgment action. To the contrary, Plaintiff opted out of that class action which was settled with the variable rate account holders, and choose instead to initiate his own action against Allfirst Financial, Inc. Inasmuch as that litigation was settled, there was never any 4 determination that the account would pay a minimum interest rate of 10% until fully withdrawn or otherwise terminated by the policy holder. Rather, after the settlement, Dauphin Deposit ceased offering the variable rate account. 2. Admitted. 3. Admitted and Denied. It is admitted that Plaintiff filed his Complaint against Allfirst Financial, Inc. on October 10, 2002, just two (2) days before the expiration of the two (2) year statute of limitations would run from when Dauphin Deposit terminated his variable rate account. It is denied that Allfirst Financial, Inc. is or ever was a successor to Dauphin Deposit. To the contrary, Allfirst Financial, Inc. is not a proper party to this action and has filed a Motion for Summary Judgment, a copy of which is attached hereto as Exhibit "A" and a supporting brief (without exhibits), a copy of which is attached hereto as Exhibit "B". 4. Admitted and Denied. It is admitted that Plaintiff filed this action against Allfirst Financial, Inc. It is denied that he believed Allfirst Financial, Inc. was the proper party Defendant. Rather, he knew that Allfirst Bank was the proper party Defendant and so notified it by correspondence dated October 2, 2000, wherein he advised Allfirst Bank that he intended to sue the bank if it discontinued the variable rate account. That letter is attached hereto as Exhibit «C„ 5. Admitted and Denied. It is admitted that on October 3, 2005, Defendant's counsel notified Plaintiff's counsel that they had sued the wrong party. It is denied that there were ongoing settlement discussions. The October 3, 2005 correspondence is a written document which speaks for itself. As of the writing of that letter, three years after Plaintiff had initiated suit, there had been no settlement negotiations as Plaintiff had never made a demand to be considered by the Defendant. -2- a 6. Admitted and Denied. It is admitted that the parties engaged in sporadic settlement discussions which never progressed. It is denied there were numerous settlement discussions or that the Defendant had made an offer. Rather, while the Defendant expressed an interest in amicably resolving this matter, given Plaintiff's position, it became clear that an amicable resolution was not likely. It is denied that this case was tried to conclusion in this Court approximately a decade ago. Following the commencement of trial, the parties reached a settlement. Moreover, many of the issues in the instant case are unique to Mr. Whiteford. 7. Admitted and Denied. It is admitted that Defendant did not raise the issue of Plaintiff naming the wrong party in its Brief in Support of Preliminary Objections filed on or about November 14, 2005. It is denied that Defendant had any obligation to do so. To the contrary, the Defendant had notified Plaintiff one month prior to the filing of that Brief that Plaintiff had named an improper party. Plaintiff's implication that Defendant had some obligation to continue to remind Plaintiff that he had sued the wrong party is simply an effort to switch focus away from the Plaintiff's failure to uphold with his obligation to name and pursue, through litigation, a proper Defendant. 8. Admitted and Denied. It is admitted that Defendant did not raise the issue of an improper party with the Court when the parties appeared before it on January 11, 2006 to argue Defendant's Preliminary Objections. Again, the Defendant had no obligation to raise an issue not currently before the Court on Preliminary Objections. Moreover, the Defendant had notified Plaintiff by correspondence of its failure to name a proper party. Defendant took no action to file a motion to amend until such time as Defendant filed for summary judgment. The Defendant was under no obligation at all to advise Plaintiff that he had sued the wrong party, let alone to -3- continue, on a regular basis, to so remind him. The obligation to investigate and name a proper party is on the plaintiff initiating the action, not on the part of the defendant being sued. 9. Admitted and Denied. It is admitted that Defendant filed a Motion for Summary Judgment on the ground that Plaintiff sued the wrong party and that due to the expiration of the statute of limitations, Plaintiff should not be permitted to amend his Complaint to add a new party. It is further admitted that Defendant did not provide Plaintiff with advance notice that it intended to file said Motion. It is denied that it had any obligation to provide such notice. 10. Admitted and Denied. It is admitted that Allfirst Bank is the successor to Dauphin Deposit Bank and Trust Company and that Plaintiff sued a separate party unrelated to the issues in this litigation, Allfirst Financial, Inc. The remaining allegation contained in Paragraph 10 constitutes a conclusion of law to which no response is required. To the extent that said allegation is deemed to be factual in nature, it is denied that Plaintiff should be granted leave of court to amend his Complaint so as to litigate the merits of his case against a new party, Allfirst Bank. 11. Denied. The allegation contained in Paragraph 1 I constitutes a conclusion of law to which no response is required. To the extent that said allegation is deemed to be factual in nature, it is denied that permitting the requested amendment would cause no undue prejudice to Allfirst Bank because it has been aware of this litigation since October 2002 and has remained aware to date. 12. Admitted and Denied. It is admitted that Allfirst Bank was aware of Mr. Whiteford and his account when mutual correspondence was exchanged in September and October 2000. It is denied that the class action litigation involved the exact same issues as does -4- t this case. It is further denied that Allfirst Bank being aware of this litigation entitles Plaintiff to now sue it after the statute of limitations has expired. 13. Admitted and Denied. It is admitted that Plaintiff filed his Complaint on October 2002 prior to the expiration of the statute of limitations. It is further admitted that Defendant informed Plaintiff that Allfirst Bank was the proper party in October of 2005, three years after the running of the statute of limitations. By way of further response, there is no obligation on the part of the Defendant to advise the Plaintiff that he sued the wrong party. The onus is on the Plaintiff to investigate and name the proper party to litigation. Likewise, Plaintiff had an obligation to timely conduct discovery which should have lead him to discover that he had sued an improper party. Moreover, Plaintiff took no action to amend the caption for one year after being advised that he sued the wrong party. In fact, it was only when the Defendant filed for Summary Judgment that Plaintiff took any action. It is denied that Allfirst Bank has known about all issues involving Plaintiff's IRA since prior to the inception of this litigation, has known about the litigation since the date it was filed, and has continued to remain abreast of the case as evidenced by the numerous settlement discussions which took place between counsel. To the contrary, Allfirst Bank has been involved in no settlement discussions. When Plaintiff filed his Complaint in October 2002, he made no efforts to move this case forward. He waited several years to conduct discovery and to list Defendant's Preliminary Objections for argument. Accordingly, Plaintiff is now trying to shift the responsibility for his failure to prosecute the case and discover that he had sued the wrong party to the improperly named Defendant. 14. Denied. The allegations contained in Paragraph 14 constitute conclusions of law to which no response is required. To the extent that they are deemed to be factual in nature, they are denied. It is denied that it would be a gross injustice to allow Allfirst to escape potential -5- Z liability based upon the argument it has now raised in its Motion for Summary Judgment. To the contrary, it would be a great injustice to allow a party to be brought into litigation three years after the expiration of the statute of limitation because Plaintiff failed to prosecute his action. Allfirst Financial, Inc., the party Defendant in this matter, had no involvement with Plaintiff's IRA or the subject of the underlying litigation as was evidenced by Plaintiff's own correspondence to Allfirst Bank. It would be a great injustice to subject Allfirst Bank to litigation over five (5) years after the cause of action accrued. 15. Denied. The allegations contained in Paragraph 15 constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, they are denied. By way of response, Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (Pa. 1963), is a published opinion which speaks for itself. The Powell Court's sole focus was not on which assets were potentially subject to liability. To the contrary, the Court concluded that the question for determination was whether the right party was sued under the wrong designation or whether the wrong party was sued such that the requested amendment is improperly designed to substitute another and distinct party. Such an impermissible substitution is requested here. 16. The allegations contained in Paragraph 16 constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that there would be no unfair surprise or prejudice to Allfirst Bank by permitting the requested amendment and that Plaintiff's Motion should be granted. To the contrary, the relevant inquiry is not whether there would be unfair surprise or prejudice but whether the Plaintiff, in fact, sued the wrong party. Plaintiff, here, sued a separate and distinct legal entity, although the wrong one, and not the proper legal entity under a wrong designation. -6- IL 17. Admitted. By way of further response, undersigned counsel received a message from Attorney David Steckel and returned his call, at which time, she was advised that the instant motion had been filed. 18. Admitted. WHEREFORE, Defendant respectfully requests that Plaintiffs Motion should be denied and that he should not be permitted to amend his Complaint to join Allfirst Bank as a party after the expiration of the statute of limitations. RHOADS & SINON By: Th A. French, Esqui Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 One South Market Square, l fh Flr. P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -7- CERTIFICATE OF SERVICE I hereby certify that on January 4, 2007, a true and correct copy document was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 EXHIBIT A 549937. 1 GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant AND NOW, this day of 2006, upon consideration of Defendant Allfirst Financial, Inc.' s Motion for Summary Judgment and Brief in Support of same, it is hereby ORDERED that the Complaint in the above-captioned action is DISMISSED with prejudice. J. 624540.1 : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 JURY TRIAL DEMANDED ORDER Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant : IN THE COURT OF COMMON PLEAS 4 3- :CUMBERLAND COUNTY, PENNSYLVANTA _ c: NO. 024950 - ? JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT NOW COMES, Defendant, Allfirst Financial, Inc., by and through its counsel, Rhoads & Sinon, LLP, and files the within Motion for Summary Judgment as follows: 1. This is an action brought by Plaintiff, Gregory Scott Whiteford ("Whiteford") arising out of his ownership of an 18 Month Variable Rate Account #8-700-024-0480001. 2. Plaintiff sued Allfirst Financial, Inc. the holding company of Allfirst Bank. I. BACKGROUND 3. On July 15, 1974, Southern Pennsylvania National Bank was converted into a Pennsylvania bank and trust company named Southern Pennsylvania Bank. See Brief in Support of Motion for Summary Judgment, Exhibit "G" (Certified Pennsylvania Department of State Records of Conversion to Southern Pennsylvania Bank). 4. On or about December 15, 1977, Mr. Whiteford established an IRA at the Delta Branch of Southern Pennsylvania Bank. See Brief in Support of Motion for Summary Judgment, Exhibit "A" (Southern Pennsylvania Bank IRA documents). 624540.1 5. Dauphin Deposit Corporation was incorporated on October 28, 1974 as the parent/holding company for Dauphin Deposit Bank and Trust Company ("Dauphin Deposit") See Brief in Support of Motion for Summary Judgment, Exhibit "M" (Certified Pennsylvania Department of State Records of incorporation of Dauphin Deposit Corporation). 6. On October 1, 1982, Southern Pennsylvania Bank merged into Dauphin Deposit Bank and Trust Company. See Brief in Support of Motion for Summary Judgment, Exhibit "H" (Certified Pennsylvania Department of State Records of Southern Pennsylvania Bank merger into Dauphin Deposit Bank and Trust Company). 7. Dauphin Deposit did not offer the same IRA investment options as Southern Pennsylvania Bank. 8. Dauphin Deposit offered several other investment options, including an 18 Month Variable Rate Account with a guaranteed minimum rate of ten percent (10%) interest ("18 Month Variable Rate Account') 9. Dauphin Deposit offered the 18 Month Variable Rate Account from January 1, 1982 until June 30, 1984. 10. When Mr. Whiteford's Southern Pennsylvania Bank established IRA matured, Dauphin Deposit automatically transferred it into an 18 Month Variable Rate Account. 11. IRA's were automatically transferred into available Dauphin Deposit accounts. 12. Dauphin Deposit Bank and Trust Company was acquired by First National Bank of Maryland on November 13, 1998. See Brief in Support of Motion for Summary Judgment, Exhibit "I" (Certified United States Office of the Comptroller of the Currency Records of Dauphin Deposit Bank and Trust Company merger into First National Bank of Maryland). -2- 13. Dauphin Deposit Corporation was merged into First Maryland Bancorp on July 8, 1997. See Brief in Support of Motion for Summary Judgment, Exhibit "N" (Certified Maryland Department of Assessments and Taxation and Pennsylvania Department of State Records of Dauphin Deposit Corporation merger into First Maryland Bancorp). 14. First Maryland Bancorp. was then merged into Allfirst Financial, Inc. on or about September 15, 1999. See Brief in Support of Motion for Summary Judgment, Exhibit "O" (Certified Maryland Department of Assessments and Taxation Records of First Maryland Bancorp. merger into Allfirst Financial, Inc.). 15. First National Bank of Maryland was renamed FMB Bank on December 31, 1998 and then renamed Allfirst Bank on June 28, 1999. See Brief in Support of Motion for Summary Judgment, Exhibits "J" and "K" (Office of the Comptroller of the Currency Records of First National Bank of Maryland conversion to a state bank and name change to FMB Bank; Certified Maryland Department of Assessments and Taxation Records of FMB Bank name change to Allfirst Bank.). 16. In 2004 Allfirst Financial, Inc. was acquired by M&T Bank Corporation. See Brief in Support of Motion for Summary Judgment, Exhibit "P" (Certified Delaware Department of State Records of Allfirst Financial, Inc. merger into M&T Bank Corporation). 17. Allfirst Bank was acquired by Manufacturers and Traders Trust Company, trademarked, M&T Bank. See Brief in Support of Motion for Summary Judgment, Exhibit "1:' (Certified Pennsylvania Department of State Records of Allfirst Bank merger into Manufacturers and Traders Trust Company, trademarked, M&T Bank). 18. Responsibility for Dauphin Deposit IRAs passed to First National Bank of Maryland which was renamed Allfirst Bank and then to M&T Bank. -3- 19. At no time did any of the parent/holding companies, including Allfirst Financial, Inc., have any control over or interest in the IRAs held by the banks. 20. Dauphin Deposit was the Plaintiff in a class action litigation involving the 18 month variable rate account and members of the class brought a counter-claim against Dauphin Deposit, which litigation was docketed at Court of Common Pleas of Cumberland County number 907-Civil-1994, and later appealed to the Superior and Supreme Courts of the Commonwealth of Pennsylvania. 21. Plaintiff opted out of the class at the time of the litigation. 22. Following commencement of trial in Cumberland County, the parties reached a settlement of the underlying litigation. 23. On August 28, 2000, Allfirst Bank notified Mr. Whiteford that the class action litigation had been settled and offered to him the same settlement options that were offered to Class A members. See Brief in Support of Motion for Summary Judgment, Exhibit "B" (Allfirst Bank's August 28, 2000 correspondence to Mr. Whiteford with attachments). 24. By letter dated September 27, 2000, Allfirst Bank notified Mr. Whiteford that his 18 month variable rate account #8-700-024-0480001 would mature on October 12, 2000. See Brief in Support of Motion for Summary Judgment, Exhibit "C" (Allfirst September 27, 2000 correspondence). 25. Allfirst Bank continued providing Mr. Whiteford with the 10% minimum interest until October 12, 2000. 26. On October 2, 2000, Mr. Whiteford wrote a letter to Allfirst Bank advising it that he intended to sue the bank if it discontinued guaranteeing the 10% interest on his 18 month -4- variable rate account. See Brief in Support of Motion for Summary Judgment, Exhibit "D" (Whiteford October 2, 2000 correspondence). 27. He further indicated that "Allfirst Bank knew or should have known what they were buying when they bought Dauphin Bank [sic]." 28. Gregory K. Thoreson, Senior Vice President and General Counsel of Allfirst Bank advised Mr. Whiteford on October 11, 2000 that "in 1994 Dauphin Deposit Bank and Trust Company (now, Allfirst Bank) and a class of over 4000 customers went to court to determine whether the bank had the right to terminate an 18 Month Variable Rate CD held as an investment by the class members in their IRA custodial accounts...." See Brief in Support of Motion for Summary Judgment, Exhibit "B" (Thoreson October 11, 2000 correspondence). 29. Mr. Thoreson disagreed with Mr. Whiteford's position that there was any guarantee of a minimum rate which existed with respect to anything except the original 18 month term of the CD and offered Mr. Whiteford the same settlement options given to Class A participants in the settlement. 30. Mr. Whiteford's funds were thereafter invested in an 18 month variable rate account which did not provide a guaranteed minimum interest rate of 10%. 31. On October 20, 2000, Allfirst Bank provided Mr. Whiteford with his Certificate of Deposit relating to the October 12, 2000 deposit and the Truth in Savings Disclosure for the Certificate of Deposit. See Brief in Support of Motion for Summary Judgment, Exhibit 'T" (October 20, 2000 Allfirst Bank correspondence and attachments). -5- II. PROCEDURAL HISTORY 32. On October 10, 2002, Mr. Whiteford filed a Complaint, naming as the sole Defendant, Allfirst Financial, Inc., Allfirst Bank's holding company. See Brief in Support of Motion for Summary Judgment, Exhibit "Q" (Complaint). 33. In the Complaint, Plaintiff alleges that Allfirst Financial, Inc. is the successor-in- interest to Dauphin Deposit Bank and Trust Company and that it therefore "assumed the duties and responsibilities of Dauphin Deposit with respect to Plaintiff's IRA...." (Complaint 113 and 10). 34. The Complaint seeks a Declaratory Judgment (Count I), and contains causes of action for violation of the Unfair Trade Practices Act and Consumer Protection Law (Count II), fraud (Count III), breach of contract (Count IV), breach of fiduciary duty (Count V), quantum meruit (Count VI), and promissory estoppel (Count VII). 35. Allfirst Financial, Inc. filed Preliminary Objections to the Complaint which were denied by Order dated February 14, 2006. 36. Allfirst Financial, Inc. filed its Answer and New Matter on or about April 19, 2006. See Brief in Support of Motion for Summary Judgment, Exhibit "R" (Answer and New Matter). 37. Allfirst Financial, Inc. specifically denied that it was the successor-in-interest to Dauphin Deposit. (Answer and New Matter 113 and 10). 38. In its New Matter, Allfirst Financial, Inc. again stated that it was not the successor-in-interest to Dauphin Deposit Bank and that Plaintiff's losses, if any, were caused by persons, firms or corporations other than Answering Defendant and for whom Answering Defendant is not responsible or liable. (Answer and New Matter ¶¶ 69 and 71). -6- 39. On May 17, 2005, Plaintiff served Interrogatories and a Request for Production of Documents. See Brief in Support of Motion for Summary Judgment, Exhibit "S" (Interrogatories) and Exhibit "T" (Request for Production of Documents). 40. In his Interrogatories, the Plaintiff asked for corporate information relating to Allfirst Financial, Inc, but also requested information concerning the identities of employees of Dauphin Deposit or Allfirst Bank who participated in communications involving the 18 month variable rate account and documents disseminated by banks including Allfirst Bank. (Interrogatory numbers 1, 3 and 5). Plaintiff Filed Suit Against The Wrong Party 41. Plaintiff's IRA established at Southern Pennsylvania Bank was thereafter transferred to successor banks as Follows: to Dauphin Deposit Bank and Trust Company through a merger; to First National Bank of Maryland through a merger (name changed to FMB Bank); to Allfirst Bank by a name change; and to Manufacturers and Traders Trust Company (trademarked M&T Bank) through a merger. 42. Plaintiff's IRA was never under the custody or control of the holding companies, which merged as follows: Dauphin Deposit Corporation was incorporated on October 28, 1974 and merged into First Maryland Bancorp.; First Maryland Bancorp. merged into Allfirst Financial, Inc.; and Allfirst Financial, Inc. merged into M&T Bank Corporation. 43. Neither Allfirst Financial, Inc. nor its predecessors or successors ever had custody of Plaintiff's IRA account or the involved investment options. 44. Allfirst Financial, Inc. is not a proper party to this action. 45. Allfirst Bank, a separate and distinct legal entity, was the custodian of Mr: Whiteford's IRA and was the party which should have been sued in this matter. -7- 46. All correspondence between Mr. Whiteford regarding his IRA was with Allfirst Bank, and he specifically stated that he would sue the bank, not the parent/holding company. 47. On October 3, 2005, counsel for Allfirst Financial, Inc. advised Mr. Whiteford's counsel that they had sued the wrong party. See Brief in Support of Motion for Summary Judgment, Exhibit "U" (October 3, 2005 correspondence from counsel for Allfirst Financial, Inc. to counsel for Mr. Whiteford). 48. No action was taken with regard to that letter. 49. The statute of limitations has run and Plaintiff cannot now substitute the correct party 50. The courts will allow an amendment to change the name of a party after the statute of limitations has run only to correct the name, but not to add anew party. 51. Plaintiff at all times knew the identity of the correct party. 52. Allfirst Bank and Allfirst Financial, Inc. are two separate entities with separately held assets. WHEREFORE, Allfirst Financial, Inc. respectfully requests that the Court grant its Motion for Summary Judgment and dismiss Plaintiff's Complaint with prejudice. RHOADS & SINON ray W By. aTho A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 One South Market Square, 12u' Flr. P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -8- CERTIFICATE OF SERVICE I hereby cer* that on November 16, 2006, a true and correct copy document was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Z*N-4? Jodi tL-Aoons EXHIBIT B Thomas A. French, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Allfirst Financial, Inc. GREGORY SCOTT WHITEFORD, Plaintiff V. ALLFIRST FINANCIAL, INC., Defendant NOV 2 0 2006!» Y : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 : JURY TRIAL DEMANDED BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF THE FACTS This is an action brought by Plaintiff, Gregory Scott Whiteford ("Whiteford") arising out of his investment in a Dauphin Deposit Bank and Trust Company ("Dauphin Deposit") 18 Month Variable Rate Account #8-700-024-0480001. On or about December 15, 1977, Mr. Whiteford established an Individualized Retirement Account ("IRA") at the Delta Branch of Southern Pennsylvania Bank. Exhibit "A" (Southern Pennsylvania Bank IRA documents). Southern Pennsylvania Bank thereafter merged into Dauphin Deposit. Dauphin Deposit did not offer the Southern Pennsylvania Bank IRA investment options, but offered several other investment options, including an 18 Month Variable Rate Certificate of Deposit with a guaranteed minimum rate of ten percent (10%) interest ("18 Month Variable Rate Account').' It was Dauphin Deposit's policy to automatically transfer Southern Pennsylvania Bank IRA investments into available Dauphin Deposit investment accounts when those IRAs 0431§:1 matured. Accordingly, when Mr. Whiteford's Southern Pennsylvania Bank established IRA matured, Dauphin Deposit automatically transferred his investment into its 18 Month Variable Rate Account. Dauphin Deposit thereafter initiated a class action litigation seeking to discontinue the 18 Month Variable Rate Account. Members of the class brought a counter-claim against Dauphin Deposit seeking to compel it to continue offering the guaranteed ten percent (10%) interest on the investment. That litigation, docketed at Court of Common Pleas of Cumberland County number 907-Civil-1994, was later appealed to the Superior and Supreme Courts of the Commonwealth of Pennsylvania. Plaintiff opted out of the class at the time of the litigation. The parties ultimately reached a settlement of the underlying litigation and Dauphin Deposit ceased offering the 18 Month Variable Rate Account and stopped paying interest guaranteed at a minimum of ten percent (10%). Through a series of mergers, acquisitions and name changes, Mr. Whiteford's IRA came to be in the custody of Allfirst Bank. On August 28, 2000, Allfirst Bank notified Mr. Whiteford that the class action litigation had been settled and offered to him the same settlement options that were offered to Class A members. Exhibit "B" (Allfirst Bank's August 28, 2000 correspondence to Mr. Whiteford with attachments). In order to elect one of the options, Mr. Whiteford had to return an election form to Allfirst Bank by September 12, 2000.3 ' Dauphin Deposit offered the 18 Month Variable Rate Account from January 1, 1982 until June 30, 1984. z The class consisted of Dauphin Deposit customers who had investments in the 18 Month Variable Rate Account. s Attached to the August 28, 2000 correspondence were an Election Form and an Allfirst Bank Truth in Savings Disclosure Statement. -2- By letter dated September 27, 2000, Allfirst Bank notified Mr. Whiteford that his 18 Month Variable Rate Account #8-700-024-0480001 would mature on October 12, 2000. Exhibit "C" (Allfirst Bank's September 27, 2000 correspondence). On October 2, 2000, Mr. Whiteford wrote a letter to Allfirst Bank advising it that he intended to sue the bank if it discontinued guaranteeing the ten percent (10%) interest on his 18 Month Variable Rate Account. Exhibit "D" (Whiteford October 2, 2000 correspondence). He further indicated that "Allfirst Bank knew or should have known what they were buying when they bought Dauphin Bank [sic]." Gregory K. Thoreson, Senior Vice President and General Counsel of Allfirst Bank advised Mr. Whiteford on October 11, 2000 that "in 1994 Dauphin Deposit Bank and Trust Company and a class of over 4000 customers went to court to determine whether the bank had the right to terminate an 18 Month Variable Rate Certificate of Deposit ("CD") held as an investment by the class members in their IRA custodial accounts...." Exhibit "E" (Thoreson October 11, 2000 correspondence). Mr. Thoreson disagreed with Mr. Whiteford's position that there was any guarantee of a minimum rate which existed with respect to anything except the original 18 month term of the CD. Nonetheless, he again offered Mr. Whiteford the same settlement options given to Class A participants in the settlement. Allfirst Bank continued providing Mr. Whiteford with the ten percent (10%) minimum interest until October 12, 2000. Mr. Whiteford's funds were thereafter invested in an 18 month variable rate account which did not provide a guaranteed minimum interest rate of ten percent (10%). On October 20, 2000, Allfirst Bank provided Mr. Whiteford with his Certificate of Deposit relating to the October 12, 2000 deposit and a Truth in Savings Disclosure for the -3- Certificate of Deposit. Exhibit "F" (October 20, 2000 Allfirst Bank correspondence and attachments). With regard to the mergers and name changes mentioned above, on July 15, 1974, Southern Pennsylvania National Bank was converted into a Pennsylvania state bank and trust company named Southern Pennsylvania Bank. Exhibit "G" (Certified Pennsylvania Department of State Records of Articles of Conversion of Southern Pennsylvania National Bank to Southern Pennsylvania Bank). On October 1, 1982 Southern Pennsylvania Bank merged into Dauphin Deposit Bank and Trust Company. Exhibit "H" (Certified Pennsylvania Department of State Records of Southern Pennsylvania Bank merger into Dauphin Deposit Bank and Trust Company). Dauphin Deposit Bank and Trust Company was acquired by First National Bank of Maryland on November 13, 1998. Exhibit -r, (Certified Office of the Comptroller of the Currency Records authorizing merger of Dauphin Deposit Bank and Trust Company into First National Bank of Maryland). First National Bank of Maryland became a Maryland state bank and changed its name to FMB Bank on December 31, 1998. Exhibit "J" (Certified Maryland Department of Assessment and Taxation Records and Office of the Comptroller of the Currency Notice from the Maryland Division of Finance Records of First National Bank of Maryland of its conversion to a state bank and name change to FMB Bank). FMB Bank was subsequently renamed Allfirst Bank on June 28, 1999. Exhibit "K" (Certified Maryland Department of Assessments and Taxation Records of FMB Bank name change to Allfirst Bank). Allfirst Bank was acquired by Manufacturers and Traders Bank and Trust Company, trademarked M&T Bank, on March 29, 2004. Exhibit 'V' (Certified Pennsylvania Department of State Records of Allfirst Bank merger into Manufacturers and Traders Trust Company). -4- Dauphin Deposit Corporation was incorporated on October 28, 1974. Exhibit "M" (Certified Pennsylvania Department of State Records of incorporation of Dauphin Deposit Corporation). It was the parent/holding company for Dauphin Deposit Bank and Trust Company. Dauphin Deposit Corporation was merged into First Maryland Bancorp on July 7, 1997. Exhibit "N" (Certified Maryland Department of Assessments and Taxation and Pennsylvania Department of State Records of Dauphin Deposit Corporation merger into First Maryland Bancorp). First Maryland Bancorp. was then merged into Allfirst Financial, Inc. on or about September 15, 1999. Exhibit "O" (Certified Maryland Department of Assessments and Taxation Records of First Maryland Bancorp. merger into Allfirst Financial, Inc.). On April 1, 2003, Allfirst Financial, Inc. was acquired by M&T Bank Corporation. Exhibit "P" (Certified Delaware Department of State Articles of Merger of Allfirst Financial, Inc. into M&T Bank Corporation). Pursuant to the corporate histories, responsibility for Southern Pennsylvania Bank IRAs passed to Dauphin Deposit to First National Bank of Maryland which was renamed Allfirst Bank and then to M&T Bank. At no time did any of the parent/holding companies, including Allfirst Financial, Inc., have any control over or interest in the IRAs held by the banks. II. PROCEDURAL HISTORY On October 10, 2002, Mr. Whiteford filed a Complaint, naming as the sole Defendant, Allfirst Financial, Inc. Exhibit "Q" (Complaint). In the Complaint, Plaintiff alleges that Allfirst Financial, Inc. is the successor-in-interest to Dauphin Deposit Bank and Trust Company and that it, therefore, "assumed the duties and responsibilities of Dauphin Deposit with respect to Plaintiff s IRA...." (Complaint ¶¶ 3 and 10). The Complaint seeks a Declaratory Judgment (Count I), and contains causes of action for violation of the Unfair Trade Practices Act and -5- Consumer Protection Law (Count II), fraud (Count III), breach of contract (Count IV), breach of fiduciary duty (Count V), quantum meruit (Count VI), and promissory estoppel (Count VII). Allfirst Financial, Inc. filed Preliminary Objections to the Complaint on December 9, 2002. On November 15, 2005, Plaintiff listed the Preliminary Objections for Argument. They were denied by Order dated February 14, 2006. Allfirst Financial, Inc. thereafter filed its Answer and New Matter on or about April 19, 2006. Exhibit "R" (Answer and New Matter). Allfirst Financial, Inc. specifically denied that it was the successor-in-interest to Dauphin Deposit. (Answer and New Matter ¶¶ 3 and 10). In its New Matter, Allfirst Financial, Inc. again stated that it was not the successor-in-interest to Dauphin Deposit Bank and that "Plaintiffs losses, if any, were caused by persons, firms or corporations other than Answering Defendant and for whom Answering Defendant is not responsible or liable." (Answer and New Matter 1169 and 71). About two and one half years after filing suit, on May 17, 2005, Plaintiff served Interrogatories and a Request for Production of Documents, Exhibit "S (Interrogatories) and Exhibit "T" (Request for Production of Documents) on Allfirst Financial, Inc.. In his Interrogatories, the Plaintiff requested information concerning the identities of employees of Dauphin Deposit or Allfirst Bank who participated in communications involving the 18 Month Variable Rate Account and documents disseminated by banks, including Allfirst Bank. (Interrogatory numbers 1, 3 and 5). On October 3, 2005, counsel for Allfirst Financial, Inc. notified Mr. Whiteford's counsel that "you have sued the holding company, Allfirst Financial, Inc., rather than Allfirst Bank." Exhibit "U" (October 3, 2005 correspondence). -6- Based on the corporate records above, Allfirst Financial, Inc. has filed a Motion for Summary Judgment on the ground that Plaintiff sued the wrong party. This brief is filed in support of that Motion. III. QUESTION PRESENTED Whether Allfirst Financial, Inc. is entitled to Summary Judgment on the ground that Plaintiff has sued the wrong party? Suggested Answer: Yes IV. ARGUMENT A. Standard for Summary Judgment Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as to not unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Selinsgrove Bedding v. Lemoyne Sleeper Co., 49 Cumb. L.J. 243, 248 (2000). To defeat this motion, the adverse party must come forth with evidence showing the existence of a genuine dispute of a material fact. Ertel v. Patriot- News Co., 544 Pa. 93, 98, 674 A.2d 1038, 1040. -7- In this action, Defendant Allfirst Financial, Inc. has established through certified records from the Commonwealth of Pennsylvania Department of State, the Maryland Department of Assessments and Taxation, the Maryland Division of Finance, and the Delaware Department of State, and the United States Office of the Comptroller of the Currency that it never had custody or control of any IRA, and specifically Plaintiff's IRA investment mechanisms. Thus, there is no genuine issue of material fact, and Defendant's right to judgment as a matter of law is clear and free from doubt. B. Defendant, AIWrst Financial, Inc. is entitled to Summary Judgment because Plaintiff sued the wrong party. In initiating a lawsuit, the onus is on the Plaintiff to properly identify and serve the appropriate Defendant. Pennsylvania Rule of Civil Procedure 2232, which provides for the joinder of parties, will not permit a joinder after the statute of limitations has run. Martier V. Equitable Gas Co., 42 Pa. D. & C.2d 572, 115 Pitts L. J. 331 (1967). Where a Plaintiff names the correct party under the wrong designation, the courts will permit an amendment of the caption. Wicker v. Esposito, 457 A.2d 1260, 500 Pa. 457 (1983). Pennsylvania Rule of Civil Procedure 1033 provides that a party may, by consent of the other party or by leave of court, correct the name of a party at any time. The Supreme Court of Pennsylvania has set forth the general rule for attempts to amend a pleading after the statute of limitations has run: Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused. -8- n Girardi v. Laquin Lumber Company, 232 Pa. 1, 81 A. 63 (1911). The Courts, however, have allowed an amendment after the statute has run in cases where the defendant has actively misled the plaintiff into believing that the correct defendant has been named. Lafferty v. Alan Wexler Agency, Inc., 393 Pa. Super. 400, 574 A.2d 671 (1990 The defendant's actions in misleading the plaintiff need not be intentional. Id. The Plaintiff bears the burden of proving active concealment through clear and convincing evidence. Montanya v. McGonegal, 2000 Pa. Super. 213, 757 A.2d 947 (2000) (citations omitted). In Ingrid Viive Tork-Hiis and Lembit Andres Tork v. Commonwealth of Pennsylvania, 558 Pa. 170, 735 A.2d 1256 (1999), the Pennsylvania Supreme Court addressed the issue of whether a party could amend its Complaint to substitute a party after the statute of limitations had run. In that tort case, the plaintiffs sued the Commonwealth of Pennsylvania, as well as John Doe Defendants, for wrongful death. The plaintiffs did not sue the appropriate Commonwealth agency. The Court refused to allow the amendment because it found that the substitution of a Commonwealth agency for the Commonwealth amounted to the addition of a new party and not merely the correction of a captioned party name. The addition of the new party would have been prejudicial to that party. The addition of a new party necessarily would be prejudicial to that party. Id. at 173, 735 A.2d at 1256. The test applied by the Court was whether the right party was sued under the wrong designation pursuant to which an amendment of the caption was appropriate, or whether the wrong party was sued and the amendment was designed to substitute a new and distinct party, pursuant to which an amendment was inappropriate. In determining whether the substituted party was a new party, the Court analyzed Jacob's Air Conditioning and Heating v. Associated -9- Heating and Air Conditioning, 336 Pa. Super. 430, 531 A.2d 494 (1987) and Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). In Jacob's, the Superior Court allowed the substitution of an individual, Fred P. Jacobs, for Jacob's Heating and Air Conditioning, concluding that there would be no prejudice and that there was no change of assets subject to liability. In Powell, the Court held that a motion to amend a Complaint was permissible so long as "the proposed amendment merely seeks to correct the designation of [a] business entity." Powell at 865. The Court also stated in dicta that since the assets subject to liability would not be enlarged, the amendment should be permitted. Id. However, the Ingrid Viive Tork-Hiis and Lembit Andres Tork Court noted that the enlargement or diminishment of assets is not the controlling factor. 735 A.2d at 1258. The controlling factor is whether the wrong party was sued and the amendment is merely an attempt to substitute a separate and distinct party. In Hoare v. The Bell Telephone Company of Pennsylvania, et al., 509 Pa. 57, 500 A.2d 1112 (1985), the Court, denying an amendment after the statute of limitations had run, also noted that the Plaintiff had sued a viable and existent company subject to suit and failed to sue an individual also subject to suit. Therefore, it did not allow the amendment. In denying the amendment, the Court distinguished Waugh v. Steelton Taxicab Company, 371 Pa. 436, 89 A.2d 527 (1952). In Waugh, the Plaintiff sued the Steelton Taxicab Company, only to discover after the statute of limitations had run that the company was a fictitious name used by an individual, Anthony John Kosir. The Court allowed the amendment after the statute had run because the Complaint was served at Kosir's place of business indicating that the correct agency was served only under the wrong name. -10- In Fredericks v. Sophocles, 2003 Pa. Super 291, 831 vA.2d 147 (2003), an injured party sued what it thought was a partnership owning the premises on which the plaintiff was injured. The defendant denied ownership and was granted summary judgment. On appeal, the Court upheld summary judgment because in its Answer, the defendant denied ownership and asserted in new matter that the injuries and damages "were caused by the acts of other persons...." In their answers to interrogatories the defendant also identified the proper party. The court indicated that it would allow substitutions where the confusion was over a partnership versus a corporate designation, but would not allow substitution where a new party would be involved. See also Fretts v. Pavetti, 282 Pa. Super 166, 422 A.2d 881 (1980). The Court further noted that the proper party could have been easily ascertained. In determining whether to allow an amendment of a caption, the relevant inquiry whether the Plaintiff could and should have sued the correct party, and whether the Plaintiff was advised by answer (or otherwise) that it sued the wrong party. In the instant case, there was no concealment of the identity of the proper party. At no time did Allfirst Financial, Inc. ever represent that it was a proper party to the litigation. Plaintiff, himself, identified Allfirst Bank when he put it on notice that he intended to sue it. See Exhibit "D". Plaintiff also sought discovery relating to Allfirst Bank and its employees and documents. See Exhibits "S" and "T". Moreover, in its Answer and New Matter, Allfirst Financial, Inc. affirmatively represented that it was not the successor-in-interest to Dauphin Deposit and that it was not responsible for Mr. Whiteford's alleged losses. See Exhibit "R", ¶¶ 3, 10, 69, and 71. Allfirst Financial, Inc., through its counsel, went so far as to notify counsel for Plaintiff on October 3, 2005 that he had sued the wrong party. See Exhibit "U". -11- U w The assets of Allfirst Financial, Inc. and Allfirst Bank are and always have been separately maintained. Plaintiff at all times knew the identity of the custodian of his IRA investment - Allfirst Bank. The custodians of Plaintiff's IRA, established at Southern Pennsylvania Bank were as follows: Dauphin Deposit Bank and Trust Company through a merger with Southern Pennsylvania Bank; First National Bank of Maryland through a merger with Dauphin Deposit Bank and Trust Company (name changed to FMB Bank); Allfirst Bank by a name change; and Manufacturers and Traders Trust Company (trademarked M&T Bank) through a merger with Allfirst Bank. Plaintiff's IRA was never under the custody or control of the holding companies, which merged as follows: Dauphin Deposit Corporation was incorporated on October 28, 1974 and merged into First Maryland Bancorp.; First Maryland Bancorp. merged into Allfirst Financial, Inc.; and Allfirst Financial, Inc. merged into M&T Bank Corporation. All correspondence to and from Mr. Whiteford regarding his IRA was with Allfirst Bank. At no time prior to initiating the instant lawsuit did Mr. Whiteford have contact with Allf rst Financial, Inc. Allfirst Bank offered the same investment option as Class A members of the settlement by Allfirst Bank on August 28, 2000. He was thereafter notified, again by Allfirst Bank, on September 27, 2000, that his 18 Month Variable Rate Account would mature on October 12, 2000. In response to that correspondence, Mr. Whiteford put the bank on notice that he intended to sue Allfirst Bank. On October 11, 2000, Gregory K. Thoreson, Senior Vice President and General Counsel of Allfirst Bank, responded to Mr. Whiteford's letter stating his disagreement with Mr. Whiteford. Mr. Whiteford's funds were thereafter invested in accordance with the Allfirst Bank's correspondence of September 27, 2000 and he was provided with a Certificate of Deposit and a Truth in Savings Disclosure Statement. -12- Contrary to his assertions that he would sue Allfirst Bank, Mr. Whiteford improperly named as the Defendant, Allfirst Financial, Inc., a separate and identifiable party which had no involvement in the matters giving rise to the instant action. Moreover, in the underlying class action referenced in Mr. Whiteford's Complaint, the Defendant was Dauphin Deposit Bank and Trust Company, Allfirst Bank's predecessor. It was not Dauphin Deposit Corporation, Allfirst Financial, Inc.'s predecessor. Any information necessary to identify the proper party was readily available through records maintained by the Commonwealth of Pennsylvania Department of State, the Maryland Department of Assessments and Taxation, Maryland Department of Finance and the Delaware Department of State. When counsel for Allfirst Financial, Inc. advised Mr. Whiteford's counsel that he had sued the wrong party and went so far as to advise him that the proper party was Allfirst Bank, no action was taken by Plaintiff in an attempt to address the situation. In fact, Plaintiff has never even requested to amend the Caption to identify a proper party, presumably because he knows that the statute of limitations has run. Allfirst Financial, Inc. also notified Plaintiff in its Answer and New that it was not the successor-in-interest to Dauphin Deposit and that it was not responsible for his losses. See Exhibit "R" ¶¶3, 10, 69, and 71. In addition, in his Interrogatories served on September 1, 2005, Plaintiff clearly sought discovery from the proper party - Allfirst Bank. Specifically, Plaintiff requested the identities of employees of Dauphin Deposit or Allfirst Bank who participated in communications involving the 18 month variable rate account and documents disseminated by banks, including Allfirst Bank. See Exhibit "S (Interrogatory numbers 3 and 5). Finally, the documents produced by Plaintiff in discovery, including deposit slips and correspondence to and from Mr. Whiteford all indicate that Allfirst Bank was the proper party. See e.g. Exhibits "B" through "F". -13- w On October 2, 2000, Mr. Whiteford notified Allfirst Bank that he intended to sue it if the bank transferred his money on October 12, 2000, as outlined in Allfirst Bank's September 27, 2000 correspondence. While the funds were transferred on October 12, 2000 and Mr. Whiteford was provided with a Certificate of Deposit and Truth in Savings Disclosure Statement from Allfirst Bank on October 20, 2000, Mr. Whiteford nonetheless waited almost two years before filing suit. He filed his Complaint on October 10, 2002, just before the two (2) year statute of limitations period had expired. Even after he had initiated a suit, he took little action to move the matter forward. Allfirst Financial, Inc. filed Preliminary Objections to the Complaint on December 9, 2002 and Mr. Whiteford responded to them on December 20, 2002. However, it was not until the Court sent Mr. Whiteford a Notice of Proposed Termination of Court Case in September, 2005, that the Preliminary Objections were listed for argument. The Praecipe listing them for argument was filed on October 6, 20054, after the four (4) year statute of limitations had run. In addition, Plaintiff served no discovery until May 17, 2005, also after the four (4) year statute of limitations had expired. Defendants responses to the Complaint and discovery disclosed that Allfirst Financial, Inc. was not the proper defendant in this matter. To allow an amendment at this late date to- add a new party would cause substantial prejudice due to Plaintiffs failure to pursue this matter. Moreover, Allfirst Bank and Allfirst Financial, Inc. have separately held assets and are separately incorporated entities. This is not a case of a mischaracterization of a business entity. Likewise, it is not an improper designation of an appropriate party. Rather, Plaintiff simply sued the wrong party, the parent/holding company, for the conduct of its subsidiary, Allfirst Bank. 4 That Praecipe was withdrawn and another Praecipe was filed on November 15, 2006. -14- Accordingly, while courts will allow an amendment of a caption to correct the designation of a party, they will not allow a new party to be sued after the statute of limitations has expired. Here, Plaintiff knew the party responsible for his IRA account, Allfirst Bank. He put it on notice that he would file this lawsuit. However, rather than doing so, suit was brought against a separate and distinct corporation, easily identifiable from official records and distinguishable from Allfirst Bank. Allfirst Financial, Inc. and Allfirst are distinct legal entities; the substitution of one for the other amounts to the addition of a new party and is impermissible after the statute of limitations expires. Inasmuch as Plaintiff has sued the wrong party and the addition of a new party at this late date is inappropriate, Allfirst Financial, Inc. is entitled to judgment as a matter of law. V. CONCLUSION For all of the foregoing reasons, there are no issues of material fact as to whether Allfirst Bank was the proper party to this action and as to whether Plaintiff brought suit against the wrong party, the bank's holding company, Allfirst Financial, Inc. Accordingly, Defendant Allfirst Financial, Inc. respectfully requests that its Motion for Summary Judgment be granted. RHOADS & SINON By. Tho s A4rench, Esquire Attorney I.D. No. 39305 Mary P. Patterson, Esquire Attorney I.D. No. 47620 One South Market Square, 12`x' Flr. P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -15- CERTIFICATE OF SERVICE I hereby certify that on November 16, 2006, a true and correct copy document was served by means of United States mail, first class, postage prepaid, upon the following: Thomas J. Weber, Esquire David M. Steckel, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 OV J die . Koon T?w^?^!°!i!11: ^T^?'n'?R•7?"?'F?'?T?.?"y7fF??fi R."l? _ EXHIBIT C J 4 . t GREGORY S. WHITEFORD 1610 Dooley Road a C??JL Whiteford. M1Q 21160 a*voj? zooo a . ?;, i ?, zooo ,0,f? ?an?a,G?e Ru.? Q as w ?1'ka?oiti P..-Qam, I l8-Moti? pwm? Jan^ LIF 10 56 /?rev ??e amt .,e?:? . r?4 &a, mat act /0 ?0 mvv/wu? ma" od4z,,., 2 f 2 0 0 or C1.+24f,? 4*4 can. #w,.,, irR2, 4i0- Lf 52---5o61? ,? I Z7 ?"? 7tar grCR GREGORY SCOTT WHITEFORD, PLAINTIFF V. ALLFIRST FINANCIAL, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4950 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT AND MOTION OF PLAINTIFF TO AMEND COMPLAINT ORDER OF COURT AND NOW, this day of February, 2007, IT IS ORDERED: (1) The motion of plaintiff to amend his complaint, IS DENIED. (2) The motion of defendant for summary judgment, IS GRANTED. Xomas J. Weber, Esquire David M. Steckel, Esquire For Plaintiff ,4ary P. Patterson, Esquire For Defendant sal By the Coo-rt-*,-- Edgar B. Bayley,/J. >- c CAS ''3 N C Cf) T W ` ' ICU U- fl- Z) O N GREGORY SCOTT WHITEFORD, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALLFIRST FINANCIAL, INC., DEFENDANT 02-4950 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT AND MOTION OF PLAINTIFF TO AMEND COMPLAINT OPINION AND ORDER OF COURT Bayley, J., February 22, 2007:-- On October 10, 2002, plaintiff, Gregory Scott Whiteford, instituted this suit against defendant, Allfirst Financial, Inc., two days before the statute of limitations ran. Plaintiff avers that he owned a variable rate IRA issued by the Dauphin Deposit Bank and Trust Company that guaranteed a minimum interest rate of 10% until the IRA was withdrawn fully or otherwise terminated by the account holder. Plaintiff avers that: "Defendant Allfirst Financial, Inc., is the successor-in-interest to Dauphin Deposit Bank and Trust Company." (Emphasis added.) Plaintiff avers: 16. In a September 27, 2000 letter addressed to Plaintiff, Defendant stated, inter alia, the following: "On October 12, 2000, your 18 Month Variable Rate Account #8-700-024-0480001 in the amount of $115,761.80 will mature. The 18 Month Variable Rate Account is no longer being offered .... If you do not select another CD, your Account will roll over to an 18 Month Floating Rate Account ... earning the interest rate and annual yield for that product in effect on the maturity date of your Account." A true and correct copy of this letter is attached hereto as Exhibit C. (Emphasis added.)' ' In contrast to this averment, the letter attached to as Exhibit C contains the heading of Allfirst Bank, P.O. Box 1596, Baltimore, MD 21203, not Allfirst Financial, Inc. 02-4950 CIVIL TERM 17. In response to Defendant's September 27, 2000 letter, Plaintiff drafted a letter dated October 2, 2000, in which he stressed that Defendant is required to honor its contractual obligations pursuant to Plaintiffs IRA that he purchased from Dauphin Deposit and is now held by Defendant, and that if Defendant failed to so do Plaintiff would be compelled to initiate legal action. A true and correct copy of Plaintiff's October 2, 2000 letter is attached hereto as Exhibit D. (Emphasis added.)2 Plaintiff avers that on October 12, 2000, defendant terminated his IRA and converted the funds into a separate and distinct variable rate account which did not provide a guaranteed minimum interest rate of 10%. Plaintiff seeks damages against Allfirst Financial, Inc., on counts alleging violation of Pennsylvania's Unfair Trade Practices Act and Consumer Protection Law, fraud, breach of contract, breach of fiduciary duty, quantum meruit and promissory estoppel. Plaintiff also seeks a declaratory judgment. On December 9, 2002, defendant filed preliminary objections to the complaint limited to a demurrer to plaintiff's quantum meruit and promissory estoppel claims. Almost three years later on November 15, 2005, plaintiff listed the preliminary objections for argument. The objections were denied on February 14, 2006. Allfirst Financial, Inc. filed an answer with new matter to the complaint on April 19, 2006, in which it denied that it was the successor-in-interest to Dauphin Deposit Bank and Trust Company. It averred that "Plaintiff's losses, if any, were caused by persons, firms or corporations other than Answering Defendant and for whom Answering Defendant is In contrast to this averment, in the letter attached as Exhibit D plaintiff states, "Dear Allfirst Bank," not Allfirst Financial, Inc. -2- 02-4950 CIVIL TERM not responsible or liable." On November 17, 2006, Allfirst Financial, inc., filed a motion for summary judgment in which it claims that it is the wrong party sued, and that the right party defendant would have been Allfirst Bank. On December 12, 2006, plaintiff filed a motion for leave to amend his complaint "to show Allfirst Bank as the Defendant in place of Allfirst Financial, Inc." The issues were briefed and argued on January 24, 2007. The parties do not dispute the following facts. Plaintiff established his IRA on December 15, 1977, in the Southern Pennsylvania Bank. Southern Pennsylvania Bank merged into the Dauphin Deposit Bank and Trust Company. Dauphin Deposit initiated a class-action suit in this court against the holders of its 18 month variable rate accounts to discontinue the guaranteed minimum interest of ten percent. Plaintiff herein opted out of the class of defendants in that suit. After extensive litigation the case was settled. Dauphin Deposit Bank and Trust Company was acquired by First National Bank of Maryland. First National Bank of Maryland was renamed FM Bank and later renamed Allfirst Bank. The holding company of Dauphin Deposit Bank and Trust Company was merged into First Maryland Bancorp. First Maryland Bancorp. was merged into Allfirst Financial, Inc.3 Allfirst Financial, Inc., a holding company, owned the stock of the separate corporation, Allfirst Bank, along with the stock of other 3 Allfirst Financial, Inc., was later acquired by M & T Bank Corporation. Allfirst Bank was later acquired by Manufacturers and Traders Trust Company, trademarked, M & T Bank. -3- 02-4950 CIVIL TERM corporate entities. On August 28, 2000, Allfirst Bank, on its letterhead, notified plaintiff that the class-action litigation had been settled. The Bank offered him the same settlement options that were offered to Class A Members. The letter stated: As you know, in 1994 Dauphin Deposit Bank and Trust Company (now, Allfirst Bank) and a class of over 4,000 customers went to court to determine whether the Bank had a right to terminate an 18 month variable rate account investment option held by the Class Members in their IRA custodial account. (Emphasis added.) The letter enclosed an Election Form which set forth in bold type: MUST BE RECEIVED BY ALLFIRST BANK BY NO LATER THAN SEPTEMBER 12, 2000, OTHERWISE YOUR RENEWAL OPTIONS AT MATURITY OF YOUR 18 MONTH VARIABLE RATE ACCOUNT WILL BE AT THE THEN CURRENT MARKET RATE OF INTEREST. PLEASE USE THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE. The letter attached a document titled: ALLFIRST BANK TEN PERCENT CERTIFICATE OF DEPOSIT TRUTH IN SAVINGS DISCLOSURE STATEMENT (Emphasis added.) Neither the letter nor the Election Form nor the Truth in Savings Disclosure Statement contained any reference to the holding company, Allfirst Financial, Inc. Plaintiff wrote to "Allfirst Bank" on October 2, 2000, stating: I feel that Allfirst Bank is obligated to honor my 10% minimum interest rate IRA CD. Dauphin Deposit Bank credited my IRA account 10% or more interest for almost 7 years as guaranteed. Allfirst Bank knew or should have known what they were buying when they bought Dauphin Bank. I don't like saying this but if my IRA is not continued at 10% minimum interest when it matures October 2, 2000, Allfirst Bank can -4- 02-4950 CIVIL TERM expect a lawsuit from me. (Emphasis added.) DISCUSSION In Powell v. Sutliff, 410 Pa. 436 (1962), defendants were designated as Ellis Sutliff and Leo E. Sutliff, individually and as partners, t/d/b/a Sutliff Chevrolet Company. After the statute of limitations ran, plaintiff discovered that Sutliff Chevrolet was a corporation and not a partnership. He moved to amend the complaint to change the designation of the defendant company to a corporation. The trial court denied the amendment on the grounds that it would introduce a new party to the action after the statute of limitations had run. The Supreme Court of Pennsylvania reversed, stating: This case is governed by Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947) .... In that case, the original complaint designated the defendant as the "Pleasant Hills Realty Company, a corporation." After the statute of limitations had run, plaintiff attempted to change the description of the business entity from a corporation to a partnership. The test laid down by Justice Stern was whether "the right party was sued but under a wrong designation"-in which event the amendment was permissible-or whether "a wrong party was sued and the amendment was designed to substitute another and distinct party"-in which event the amendment was not permissible.... In permitting the amendment from a corporation to a partnership in that case, we observed that the original complaint had sought to impose liability against the assets of a business entity known as Pleasant Hills Realty Company. The amendment was not an attempt to impose additional liability on the individual owners of the company, but rather merely sought to correct the description of the business entity already made a party to the proceedings. The assets subject to liability were the same both before and after the amendment. Although our case presents the converse of the Gozdonovic situation, the reasoning of that case compels an identical result. Here, the original complaint sought to impose liability against the assets of the business entity known as Sutliff Chevrolet Company. As in Gozdonovic, the proposed amendment merely seeks to correct the designation of that business entity, in this case from a partnership to a corporation. Since the -5- 02-4950 CIVIL TERM assets subject to liability will not be enlarged, the court below erred in not permitting the amendment. (Footnotes omitted) (Emphasis added.) In Jacob's Air Conditioning and Heating v. Associated Heating and Air Conditioning, 366 Pa. Super. 430 (1987), Jacob's Air Conditioning and Heating commenced an action against the defendant. In a preliminary objection, defendant maintained that Jacob's Air Conditioning and Heating did not have the legal capacity to institute suit because it was not registered as either a Pennsylvania Corporation or a foreign corporation authorized to do business within the Commonwealth of Pennsylvania. The court agreed and dismissed the suit. It also denied a motion by plaintiff to file an amended complaint after the statute of limitations had run to show that the individual, Fred P. Jacob and the fictitious name Jacob's Air Conditioning and Heating were one and the same entity or agent. The Superior Court of Pennsylvania reversed, stating: In situations where the statute of limitations had run and a party proposes an amendment to a complaint. . . the question to be resolved is whether the proposed amendment merely corrects a party name or adds a new party to the litigation. If an amendment constitutes a simple correcting of the name of a party, it should be allowed. Appellee understood that this legal action stemmed from a transaction he allegedly entered into with Jacob's Air Conditioning and Heating. The fact that Jacob's Air Conditioning and Heating was a fictitious name or whether the fictitious name was owned by an individual or corporation does not affect appellee's alleged contractual obligations. There is no change of assets subject to liability by permitting appellant to amend its pleading. This is a common concern in case where a party has not been permitted to change the form of the business entity. Stated otherwise, appellee could not be prejudiced regardless of the form of the business entity if the assets subject to liability remain the -6- 02-4950 CIVIL TERM same. Generally, when an appellee will not be prejudiced by the proposed change, courts are inclined to deem the change one of name only, not of party, and will permit the amendment to allow the change. (Emphasis added.) In Saracina v. Cotoia, 417 Pa. 80 (1965), the plaintiff was struck by an automobile driven by Robert Cotoia. Plaintiff's complaint named Robert's father, Anthony Cotoia, as the defendant. After the statute of limitations had run, the plaintiff attempted to amend the complaint to change the name of defendant from Anthony to Robert Cotoia. The Supreme Court, upholding an order of the trial court, concluded that the complaint could not be amended because Robert Cotoia was a new and distinct party. Plaintiff herein, citing In re Francis Edward McGillick Foundation, 406 Pa. Super. 249 (1991), argues that since Allfirst Bank was well aware of the disputes involving the variable rate accounts with a guaranteed interest rate of 10%, this action should not be dismissed and he should be allowed to amend his complaint to name Allfirst Bank as defendant. In McGillick, the Superior Court of Pennsylvania stated that, "absent prejudice to the opposing party, such amendments to the pleadings are to liberally allowed; the goal of the judicial system is to secure a determination on the merits, not enforce technical rules of pleadings." In McGillick, however, the court concluded that changing the name of a party from the Roman Catholic Diocese of Pittsburgh to the name of the Bishop as trustee ad litem, did not name a new party, but rather corrected the name of the party. In the case sub judice, unlike the facts in Powell and Jacob's Air -7- 02-4950 CIVIL TERM Conditioning, allowing plaintiff to amend his complaint to name Allfirst Bank as a defendant changes the assets subject to liability from Allfirst Financial, Inc., to Allfirst Bank. Like the facts in Saracina, Allfirst Bank is a new and distinct party. Despite the various changes in the name of the banks and holding companies, plaintiff could not have been misled as to what entity held his IRA when he instituted suit on October 10, 2002. The letter to him by Allfirst Bank dated August 28, 2000, with the enclosed Election Form and Truth In Savings Disclosure Statement, specifically advised that "Dauphin Deposit Bank and Trust Company" was "now Allfirst Bank." It was an "Allfirst Bank" Truth In Savings Disclosure Statement. Plaintiff was offered an election by "Allfirst Bank" to renew his IRA on the Bank's terms. Plaintiff then wrote "Allfirst Bank" on October 2, 2000, stating that "Allfirst Bank should have known what they were buying when they bought "Dauphin Bank," and that "Allfirst Bank can expect a lawsuit from me." Yet inexplicably, on October 10, 2002, he filed suit against Allfirst Financial, Inc. Plaintiff has sued a party that cannot be liable to him, and because the statute of limitations has expired, he cannot file an amended complaint to name as a new party, Allfirst Bank. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2007, IT IS ORDERED: (1) The motion of plaintiff to amend his complaint, IS DENIED. (2) The motion of defendant for summary judgment, IS GRANTED. -8- 02-4950 CIVIL TERM By the Court, Edgar B. Bayley, J. Thomas J. Weber, Esquire David M. Steckel, Esquire For Plaintiff Mary P. Patterson, Esquire For Defendant :sal -9- I J Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire L D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg. PA 17108-1268 Telephone: (717) 234-4161 Counsel for Plaintiff GREGORY SCOTT WHITEFORD, Plaintiff, VS. ALLFIRST FINANCIAL, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4950 NOTICE OF APPEAL Notice is hereby given that Gregory Scott Whiteford, Plaintiff above named. hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 22"d day of February, 2007. This order has been entered in the docket as evidenced by the attached copy of the docket entries in this case. GOLDBERG KATZMAN, P.C. By: Thomas J. Weber, squire I.D. No. 58853 David M. Steckel., Esquire I. D. No. 82340 320 Market Street Harrisburg. PA 17101 (717) 234-4161 Attorneys for Plaintiff Date: March 22. 2007 '??S511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2002-04950 WHITEFORD GREGORY SCOTT (vs) ALLFIRST FINANCIAL INC Reference No. Filed........, 10/10/2002 Case Type ..... . COMPLAINT Jud 00 ment Time. ... ...: i 4.09 g ..... Execut on Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: ------------ C C t Disposed Date. 0/00/0000 ase ommen s ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************** ************ General Index Attorney Info WHITEFORD GREGORY SCOTT PLAINTIFF KATZMAN RONALD M 1611 DOOLEY ROAD WHITEFORD MD 21160 ALLFIRST FINANCIAL INC DEFENDANT FRENCH THOMAS A 25 SOUTH CHARLES STREET ELLISON JAMES E BALTIMORE MD 21201 PATTERSON MARY P * Date Entries - FIRST ENTRY - - - - - - - - - - - - - - 10/10/2002 COMPLAINT - CIVIL ACTION -------------------------------------------------------------------- 10/22/2002 PRAECIPE TO ATTACH VERIFICATION TO PLEADING - BY RONALD M KATZMAN ESQ FOR PLFF ------------------------------------------------------------------- 11/12/2002 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) ------------------------------------------------------------------- 11/19/2002 PRAECIPE FOR ENTRY OF APPEARANCE - THOMAS A FRENCH AND JAMES E ELLISON ATTYS FOR ALLFIRST FINANCIAL INC ------------------------------------------------------------------- 11/19/2002 AFFIDAVIT OF SERVICE - COPY OF COMPLAINT BY CERT MAIL TO DEFT ON 10-11-02 ------------------------------------------------------------------- 12/09/2002 PRELIMINARY OBJECTIONS - BY THOMAS A FRENCH ESQ ------------------------------------------------------------------- 12/20/2002 PLAINTIFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY RONALD M KATZMAN ESQ FOR PLFF ------------------------------------------------------------------- 10/04/2005 STATEMENT OF INTENTION TO PROCEED - BY THOMAS J WEBER ESQ FOR PLFF ------------------------------------------------------------------- 10/07/2005 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID M STECKEL ESQ FOR PLFF ------------------------------------------------------------------- 11/15/2005 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID M STECKEL ESQ ------------------------------------------------------------------- 11/15/2005 PRAECIPE TO STRIKE PRELIMINAR OBJECTIONS FOR ARGUMENT FROM 11/23/05 ARGUMENT COURT LIST - BY THOMAS J WEBER ESQ FOR PLFF ------------------------------------------------------------------- 2/14/2006 ORDER OF COURT - DATED 2/14/06 - IN RE DEFT'S PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - FOR REASONS STATED IN ACCOMPANYING OPINION THE PRELIMINARY OBJECTIONS ARE DENIED - BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- 4/19/2006 ANSWER AND NEW MATTER - BY MARY P PATTERSON ATTY ---------------------------------------------- --------------------- 5/02/2006 PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER - BY THOMAS J WEBER ATTY ------------------------------------------------------------------- 11/17/2006 DEFT'S MOTION FOR SUMMARY JUDGMENT - BY MARY P PATTERSON ATTY FOR DEFT ------------------------------------------------------------------- 12/12/2006 MOTION OF PLFF GREGORY SSCOTT WHITEFORD FOR LEAVE OF COURT TO AMEND CONMPLAINT PURSUANT TO PA RCP NO 1033 - BY THOMAS J WEBER ATTY FOR PLFF ------------------------------------------------------------------- 12/15/2006 ORDER OF COURT - 12-15-06 - IN RE: MOTION OF PLFF FOR LEAVE OF COURT TO AMEND COMPLAINT PURSUANT TO PA RCP NO 1033 - RULE ISSUED UPON DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS OF SVC - BY J WESLEY OLER PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2002-04950 WHITEFORD GREGORY SCOTT (vs) ALLFIRST FINANCIAL INC ..Reference No... Filed......... 10/10/2002 Case Ty e..... . COMPLAINT Time..... ..: 4.09 jud men ..... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: JR J - COPIES MAILED 12-15-06 ------------------------------------------------------------------- 12/29/2006 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT ALLFIRST FINANCIAL INC'S MOTION FOR SUMMARY - BY MARY P PATTERSON ATTY FOR DEFT ------------------------------------------------------------------- 1/04/2007 RESPONSE OF DEFT ALLFIRST FINANCIAL INC TO PLFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT PURSUANT TO PA RCP 1033 - BY MARY P PATTERSON ATTY FOR DEFT ------------------------------------------------------------------- 2/22/2007 ORDER OF COURT - 02-200-07 - IN RE: MOTION OF DEFT FOR SUMMARY JUDGMENT AND MOTION FO PLFF TO AMEND COMPLAINT - 1-MOTION OF PLFF TO AMEND HIS COMPLAINT IS DENIED 2-MOTION OF DEFT FOR SUMMARY JUDGMENT IS GRANTED - BY EDGAR B BAYLEY J - COPIES MAILED 02-22-07 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information **-F+-es & Debits Beq*Bal Py*'mts/Adj End Bal ******************************* ******* ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 5.00 - 5.00 -------- --- - .00 ---.------ ------------ - 50.50 - 50.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** ToOdMOM , I hM uotto Se'M ,,,a go um ot sad court at rt '? CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record United States Mail at Harrisburg, Pennsylvania.. with first-class postage prepaid, addressed to the following: Mary P. Patterson, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys fof° Defendant The Honorable Edgar B. Bayley (P.J.) Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Pam Sheafffer Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Taryn N. Dixon, Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 GOLDBERG KATZMAN, P.C. By: ?Z?_ ?_?= David M. Steckel, Esquire Date: March 22, 2007 r-> ? o ° rv -z) V COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District March 27, 2007 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www. sup error. court. state. pa. us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 511 MDA 2007 Gregory Scott Whiteford, Appellant V. Allfirst Financial, Inc. Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa. R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett Prothonotary WJT Enclosure 12:55 PA Appeal Docket Sheet Docket Number: Page 1 of 3 March 27, 2007 511 MDA 2007 A t Gregory Scott Whiteford, Appellant V. Allfirst Financial, Inc. Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: March 26, 2007 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: April 10, 2007 Next Event Type: Original Record Received Next Event Due Date: May 2, 2007 Superior Court of Pennsylvania 3/27/2007 3023 12:55 PA Appeal Docket Sheet Docket Number: 511 MDA 2007 Page2of3 March 27, 2007 Superior Court of Pennsylvania COUNSEL INFORMATION Appellant Whiteford, Gregory Scott Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Weber, Thomas J. Bar No.: 58853 Law Firm: Goldberg Katzman, P.C. Address: 320 Market St PO Box 1268 Harrisburg, PA. 17108-1268 Phone No.: (717)234-4161 Fax No.: (717)234-6808 Receive Mail: Yes E-Mail Address: tjw@goldbergkatzman.com Receive E-Mail: Yes Attorney: Steckel, David M. Bar No.: 82340 Law Firm: Goldberg Katzman, P.C. Address: 320 Market St PO Box 1268 Harrisburg, PA 17108-1268 Phone No.: (717)234-4161 Fax No.: (717)234-6808 Receive Mail: No E-Mail Address: Receive E-Mail: No Appellee Allfirst Financial, Inc. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Patterson, Mary Patricia Bar No.: 47620 Law Firm: Rhoads & Sinon, L.L.P. Address: One S Market Sq PO Box 1146 Harrisburg, PA 17108-1146 Phone No.: (717)231-6623 Fax No.: (717)231-6626 Receive Mail: Yes E-Mail Address: mpatterson@rhoads-sinon.com Receive E-Mail: Yes FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 3/23/07 Notice of Appeal 60.00 60.00 2007SPRMD000264 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: February 22, 2007 Judicial District: 9 3/27/2007 3023 12:55 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 511 MDA 2007 Page 3 of 3 March 27, 2007 Date Documents Received: March 26, 2007 Date Notice of Appeal Filed: March 23, 2007 Order Type: Order Entered OTN: Judge: Bayley, Edgar B. Lower Court Docket No.: 02-4950 President Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By March 26, 2007 Notice of Appeal Filed Appellant Whiteford, Gregory Scott March 27, 2007 Docketing Statement Exited (Civil) Middle District Filing Office 3/27/2007 3023 t T--OF ?} CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: GREGORY SCOTT WHITEFORD VS. ALLFIRST FINANCIAL, INC. 2002-4950 511 MDA 2007 The documents comprising the record have been numbered from No.1 to 181, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/29/2007. L P- I., t "' * Curtis r Long, P ono Regina K. Lebo, Deputy. An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 0 rnberl Anti in the Commonwealth of Pennsylvania 511 MDA 2007 to No. 2002-4950 Civi 1 Term, 19 is contained the following: COPY OF appenraiu-e DOCKET ENTRY Gregory Scott Whiteford 1611 Dooley Road Whiteford, MD 21160,` VS. Allfirst Financial, Inc. 25 South Charles St. Baltimore, MD-21201 ** See certified docket entries ** Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, i have hereunto this 29th 1, Curtis R•Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Greg= Scott Whi'I-eford Plaintiff, and Allfirst Financial Tnc Defendant , as the same remains of record before the said Court at No. 02-4950 of civil Term, A. D. 19 . set my hand and d affixed the seal of said Court day of r _ 4A. D., l? Prothonotary 1, Edgar B. Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMberland in the Commonwealth of Pennsylvania, duly commissionerae t to to all of whose acts as such full faith and credit are and ought to be given as well in Courts ore as ewh , nhat the said record, certificate and attestation are in due form of law and th roper tcer n.?• oo' Commonwealth of Pennsylvania County of Cumberland ss: President Judge 1, nirtiG R Tong , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 29thda f March A. D. 2007 Prothonotary O 7 4 N i z o `$ '? o ?' ern $? '? N .? tD co 4UA 50 ? n d 0 c r ? I r 100 11 %-UL1UJCt1d11U I.VUlll.y r.t Vl.11V11Vl.dty'S V111C:C Civil Case Print rays 1 2002-04950 WHITEFORD GREGORY SCOTT (vs) ALLFIRST FINANCIAL INC Reference No... Filed......... 10/10/2002 Case Type ..... : COMPLAINT Time.........: 4:09 Judgmen.t...... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments - ------------ Higher Crt 1.: 511 MD 2007 Higher Crt 2.: ***************************** *************************************************** General Index Attorney Info WHITEFORD GREGORY SCOTT PLAINTIFF KATZMAN RONALD M 1611 DOOLEY ROAD WHITEFORD MD 21160 ALLFIRST FINANCIAL INC DEFENDANT FRENCH THOMAS A 25 SOUTH CHARLES STREET ELLISON JAMES E BALTIMORE MD 21201 PATTERSON MARY P / -5/ 5a-Szl '5s- -5'6 S"7- SiS- 55- !v? lv7- 70 7/- 72 i 73 7? 75- 76 77 - * Date Entries ******************************************************************************** 10/10/2002 10/22/2002 11/12/2002 11/19/2002 il/19/2002 12/09/2002 12/20/2002 10/04/2005 10/07/2005 11/15/2005 11/15/2005 2/14/2006 93-106 4/19/2006 ???- /©J 5/02/2006 1011-113 11/17/2006 115_ /z?.? 12/12/2006 l f q 12/15/2006 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- PRAECIPE TO ATTACH VERIFICATION TO PLEADING - BY RONALD M KATZMAN ESQ FOR PLFF ------------------------------------------------------------------- IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE - THOMAS A FRENCH AND JAMES E ELLISON ATTYS FOR ALLFIRST FINANCIAL INC ------------------------------------------------------------------- AFFIDAVIT OF SERVICE - COPY OF COMPLAINT BY CERT MAIL TO DEFT ON 10-11-02 ------------------------------------------------------------------- PRELIMINARY OBJECTIONS - BY THOMAS A FRENCH ESQ ------------------------------------------------------------------- PLAINTIFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY RONALD M KATZMAN ESQ FOR PLFF ------------------------------------------------------------------- STATEMENT OF INTENTION TO PROCEED - BY THOMAS J WEBER ESQ FOR PLFF ------------------------------------------------------------------- PRAECIPEFOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID M STECKEL ESQ FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID M STECKEL ESQ ------------------------------------------------------------------- P C PE TO STRIKE PRELIMINAR OBJECTIONS FOR ARGUMENT FROM 11 23 /I 05 ARGUMENT COURT LIST - BY THOMAS J WEBER ESQ FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - DATED 2/14/06 - IN RE DEFT'S PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - FOR REASONS STATED IN ACCOMPANYING OPINION THE PRELIMINARY OBJECTIONS ARE DENIED - BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- ANSWER AND NEW MATTER - BY MARY P PATTERSON ATTY ------------------------------------------------------------------- PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER - BY THOMAS J WEBER ATTY ------------------------------------------------------------------ DEFT'SMOTION FOR SUMMARY JUDGMENT - BY MARY P PATTERSON ATTY - FOR DEFT ------------------------------------------------------------------- MOTION OF PLFF GREGORY SSCOTT WHITEFORD FOR LEAVE OF COURT TO AMEND CONMPLAINT PURSUANT TO PA RCP NO 1033 - BY THOMAS J WEBER ATTY FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - 12-15-06 - IN RE: MOTION OF PLFF FOR LEAVE OF COURT TO AMEND COMPLAINT PURSUANT TO PA RCP NO 1033 - RULE ISSUED UPON DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS OF SVC - BY J WESLEY OLER rY5511 uumner.iana younty rrotnonocary,s u=Lice edye z Civil Case Print 2002-04950 WHITEFORD GREGORY SCOTT (vs) ALLFIRST FINANCIAL INC Reference No... Filed......... 10/10/2002 Case Type.....: COMPLAINT Time. .... . 4:09 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 511 MD 2007 Higher Crt 2.: i? IQ 41 X 73 - 66 177 - / gL> 1:51 JR J - COPIES MAILED 12-15-06 ------------------------------------------------------------------- 12/29/2006 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT ALLFIRST FINANCIAL INC'S MOTION FOR SUMMARY - BY MARY P PATTERSON ATTY FOR DEFT ------------------------------------------------------------------- 1/04/2007 RESPONSE OF DEFT ALLFIRST FINANCIAL INC TO PLFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT PURSUANT TO PA RCP 1033 - BY MARY P PATTERSON ATTY FOR DEFT ------------------------------------------------------------------- 2/22/2007 ORDER OF COURT - 02-200-07 - IN RE: MOTION OF DEFT FOR SUMMARY JUDGMENT AND MOTION FO PLFF TO AMEND COMPLAINT - 1-MOTION OF PLFF TO AMEND HIS COMPLAINT IS DENIED 2-MOTION OF DEFT FOR SUMMARY JUDGMENT IS GRANTED - BY EDGAR B BAYLEY J - COPIES MAILED 02-22-07 ------------------------------------------------------------------- 3%23/2007 NOTICE OF APPEAL TO SUPERIOR COURT - BY THOMAS J WEBER ATTY FOR PLFF ------------------------------------------------------------------- 3/28/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #511 MDA 2007 ' ------------------------------------------ ----------------------- 3/29/2007 NOTICE OF DOCKET ENTRIES MAILED TO THOMAS A FRENCH ESQ RONALD M KATZMAN ESQ THOMAS J WEBER ESQ DAVID M STECKEL ESQ AND MARY P PATTERSON ESQ - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal Pmts/Adj End Bal ******************************** ******** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00. AUTOMATION 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL HIGH CT 48.00 48.00 .00 -------------- 98.50 ---------- --- 98.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** r r, .. TTRI17 ! sat my hand In 7--at°rrlc r and the seal c. r-,rlisle, Pa. This ....... day of Prothonotary K Thomas J. Weber. Esquire I.D. No. 58853 David M. Steckel. Esquire I. D. No. 82340 GOLDBERG KATZMAN, P.C. Attorneys for Plaintiff 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for PlaintUf GREGORY SCOTT WHITEFORD. Plaintiff, v. ALLFIRST FINANCIAL, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-49.50 CONCISE STATEMENT OF THE MATTERS COMPLAINED OF AND INTENDED TO BE ARGUED ON APPEAL AND NOW, comes the Plaintiff, by and through his counsel, Goldberg Katzman, P.C., who states the following issues he intends to raise on appeal pursuant to C.C.R.P. 1925 and Pennsylvania Rules of Appellate Procedure, Rule 1925: Whether this Honorable Court erred in its February 22, 2007 Order by granting Defendant's Motion for Summary Judgment and denying Plaintiffs Motion to Amend his Complaint? a. Where for a period in excess of twelve (12) years Allfirst Bank, and its numerous predecessors before it, have been aware of Plaintiffs issues with the 10% IRA that was the subject of the class action litigation in the mid- 1990'x, despite the fact that Allfirst Financial. Inc., the president entity of Allfirst Bank, was formally a party to this lawsuit? b. Where Allfirst Bank, through its counsel, has been actively involved in this case since its inception? C. Where denying Defendant's motion for summary judgment and permitting Plaintiff to amend the Complaint would not prejudice Allfirst Bank at all, let alone substantially, because, in addition to the reasons set forth above, the assets that were potentially subject to liability as a result of Plaintiff suing the parent/holding company (Allfirst Financial, Inc.) included those of the subsidiary, Allfirst Bank`? d. Where permitting Plaintiff to amend the Complaint would not cause any unfair surprise to Allfirst Bank for the reasons set forth above? and e. Where denying Defendant's motion for summary judgment and permitting Plaintiff to amend the Complaint would not cause any material delay in bringing this case to trial because the parties have not yet even completed discovery`? GOLDBERG KATZMAN, P.C. By: ' Thomas J. Weber, Esquire I.D. No. 58853 David M. Steckel, Esquire I. D. No. 82340 320 Market Street Harrisburg, PA 17101 (717) 234-4161 Attornevs for Plaintiff Date: April 2, 2007 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid. addressed to the following: Mary P. Patterson, Esquire Rhoads & Sinon, LLP 1 South Market Square Harrisburg, PA 17101 Attorneys for Defendant The Honorable Edgar B. Bayley (P.J.) Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Pam Sheafffer Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Taryn N. Dixon. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 GOLDBERG KATZMAN, P.C. By: ' David M. Steckel, Esquire Date: April 2, 2007 ?? ?? c.:., `? -' ? 'S , !-_ 1 ? ? '? .l ',- ? s t 4? ? . ': j ? 1. 1 - .. . ? 7?!? Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. February 8, 2008 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Whiteford, G. v. Allfirst Financial, Inc. No.511 MDA 2007 Trial Court/Agency Dkt. Number: 02-4950 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrirhurg, PA 17101 717-772-1294 www superior court. state pa. us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Part April 4, 2007 1 No Opinion April 4, 2007 j Date of Remand of Record: 2 8 2008 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by sign ng, dating, and returning the enclosed copy of this certifcat to our office. Copy recipients (n td below) need not acknowledge receipt. C Jame's'). McCullough, Esq. Deputy Prothonotary Signature i Date Printed Name C C 00 c) ----..?? rstt C M33 Fn N MO L J-A02014-08 r NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT GREGORY SCOTT WHITEFORD, Appellant V. ALLFIRST FINANCIAL, INC., Appellee P.65.37 IN THE SUPERIOR COURT OF PENNSYLV NIA I No. 511 MDA 1007 Appeal from the Order entered February 22, 20071 In the Court of Common Pleas of Cumberland Coun?y Civil at No(s): 02-4950 f BEFORE: STEVENS, ORIE MELVIN, and BENDER, JJ. MEMORANDUM: FILED: February 8, 2008 Appellant Gregory Scott Whiteford appeals from the order entered in the Court of Common Pleas of Cumberland County on February 22, 2007, at which time his motion to amend his complaint was denied and he motion for summary judgment of Appellee Allfirst Financial, Inc., was ranted. We affirm. On October 10, 2002, Appellant filed a Complaint alleging Appellee is the successor in interest to Dauphin Deposit Bank and Trust Company which offered individual retirement accounts ("IRAs") with sevoral different investment options between January 1, 1982 and June 30,E 1984. One option, which Appellant chose, was an eighteen month variablo rate account which paid a rate of interest based upon the average yield of two-year Treasury Notes, automatically renewable and guaranteed to poy a minimum J-A02014-08 OZ interest rate of 10% until the IRA was withdrawn fully or otherwise terminated by the account holder. Eventually, Dauphin Deposit Bank and Trust Company initiated a class action declaratory judgment action in the Cumberland County Court of Common Pleas in an effort to :terminate its obligation to continuing offering the eighteen month variable rate account with a guaranteed minimum interest rate of 10%. Members of the class brought a counterclaim requesting that Dauphin Deposit properly fulfill its obligation; Appellant opted out of this lawsuit. In response to Appellant's Complaint, on December 9, 2002, Appellee filed preliminary objections to which Appellant responded on December 20, 2002. On October 4, 2005, Appellant filed a statement of! intention to proceed, and on November 15, 2005, Appellant listed the preliminary objections for argument. The same were denied on February 11, 2006. Appellee filed an Answer with New Matter to the Complaint in which it denied it was the successor in interest to Dauphin Deposit Balnk and Trust Company. On November 17, 2006, Appellee filed a motion for summary judgment claiming it was improperly sued and that the propel party would have been Allfirst Bank. On December 12, 2006, Appellant filed a motion for leave to amend his complaint. The former motion was granted and the latter was denied, which led to Appellant's filing of the instant appeal. -2- J-A02014-08 The trial court did not Order Appellant to file a statement of matters complained of pursuant to Pa.R.A.P. 1925, though it did fill an Opinion pursuant to the same on February 22, 2007. In his brief, Appellant raises the following issues for our review: A. Whether the trial court erred in its February 22, 200 , Order by granting [Appellee's] motion for summa judgment and denying (Appellant's] motion to ame d his complaint? L Whether [Appellant] should be permitted to amend his Complaint because allowing such action would not result in any unfair surprise or undue prejudice to Allfirst Bank because it has been aware of [Appellant] and his issues with [Appellant's] IRA since 1999, and it has been actively involved in this litigation since its inception in 2002? ii. Whether the lower court erred in finding that t assets subject to liability would materially chan if [Appellant's] requested amendment we permitted. Brief for Appellant at 3. After a thorough review of the record, the briefs of tho parties, the applicable law, and the learned opinion of the Honorable Edgar B. Bayley, written pursuant to Pa.R.A.P. 1925(a), we conclude the issues ?kppellant has raised on appeal merit no relief. In his Opinion, the distinguished trial judge comprehensively discusses and properly disposes of the issues Appellant presented in his brief. See Trial Court Opinion, filed February 2?, 2007. Accordingly, we affirm on the basis of the trial court's opinion. Judgment of sentence affirmed. -3- J-AO2014-08 Judgment Entered: C k uty Prothonotary February 8, 2008 Date: -4- m O ?-n :? F3 rn c-n '0 U 11'1,6 "v IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT GREGORY SCOTT WHITEFORD, Petitioner V. ALLFIRST FINANCIAL, INC., Respondent PER CURIAM No. 162 MAL 2008 Petition for Allowance of 4peal from the Order of the Superior Court ORDER AND NOW, this 1St day of October, 2008, the Petition for Allowance of Appeal is DENIED. TRUE & CORRECT COPY ATTEST: October 1, 2008 Eli eth . Zisk, Chief Clerk ? v 0 a 7 • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: GREGORY SCOTT WHITEFORD VS. ALLFIRST FINANCIAL, INC. 2002-4950 511 MDA 2007 • The documents comprising the record have been numbered from No.l to 181, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/29/2007 . / .r. Cuvfis R. Longs~tl`orio~ary Regina K. Lebo, Deputyy/! An additional copy of this certificate is enclosed Please sign and date copy thereby acknowledEin~ receipt of this record. Date S'~;~'~~D~I~PERIOR CQURT APR ~ 4 2007 MIDDLE CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER • PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: GREGORY SCOTT WHITEFORD VS. ALLFIRST FINANCIAL, INC. 2002-4950 511 MDA 2007 The documents comprising the record have been numbered from No.l to 181, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/29/2007 . C~ Curtis R. Long;~"r thou ary Regina K. Lebo, Deput An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Received in Superior Court APR 0 4 2007 • MIDDLE