HomeMy WebLinkAbout00-01141
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McKONL Y & ASBURY, LLP
415 Fallowfield Road, Second Floor
Camp Hill, Pennsylvania 17011
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
NO. .;(000 - /PI/
Cu: (If:IUrJ
JOHN C. STILLWAGGON
N orthridge Office Plaza
117 VIP Drive, Suite 220
Wexford, Pennsylvania 15090
CIVIL ACTION - LAW
Defendant
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 HA VB 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 LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse, 4th Floor
Carlisle, P A 17013
(717) 240-6200
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NOTlCIA
Le han demandado a usted en la corte, Si usted qui ere 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 notifcacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abodago y
archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de
su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una
orden contra usted sin previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en
la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 ostros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE, SI NO TIENT
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITAABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse, 4th Floor
Carlisle, P A 17013
(717) 240-6200
:
McKONL Y & ASBURY, LLP
415 Fallowfield Road, Second Floor
Camp Hill, Pennsylvania 170 II
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO, dtMO- /1'1/ {!.U;J ~
JOHN C. STILL W AGGON
Northridge Office Plaza
117 VIP Drive, Suite 220
Wexford, Pennsylvania 15090
CIVIL ACTION - LAW
Defendant
Jury Trial Demanded
COMPLAINT
AND NOW, comes the plaintiff, McKonly & Asbury, LLP ("McKonly & Asbury"), by
and through its counsel, Keefer Wood Allen & Rahal, LLP, and files this Complaint averring as
follows:
PARTIES
I. The plaintiff, McKonly & Asbury, is a Pennsylvania limited liability partnership
comprised of certified public accountants engaged in a practice of public acconnting,
with a business address of 415 Fallowfield Road, Second Floor, Camp Hill, Cumberland
County, Pennsylvania 170 II.
2. The defendant, John C, Stillwaggon ("Mr. Stillwaggon"), is an adult individual,
who upon information and belief has a present business address of North ridge Office
Plaza, 117 VIP Drive, Suite 220, Wexford, Allegheny County, Pennsylvania 15090. Mr.
Stillwaggon's last known home address was 477 Olive Street, Pittsburgh, Pennsylvania
15237,
FACTUAL BACKGROUND
3. Mr, StilIwaggon was a partner with McKonly & Asbury and entered into a
partnership agreement in Cumberland County dated January 2, 1998,
4. Mr, Stillwaggon resigned as a partner with McKonly & Asbury on August 18,
1998, tendering his resignation at McKonly & Asbury's offices located in Cumberland
County,
5, Mr, Stillwaggon withdrew from the partnership pursuant to paragraph 12A ofthe
partnership agreement, and the remaining partners ofMcKonly & Asbury accepted Mr.
Stillwaggon's resignation.
6, The agreement setting forth the terms of the withdrawal from the partnership were
included in the document entitled "Withdrawal from Partnership and General Release"
(hereinafter referred to as the "Release"). A true and copy of that Release is attached
hereto as Exhibit A and incorporated herein by reference,
7. Under paragraph 6 of the Release, the parties agreed that Mr, Stillwaggon's last
day of employment with McKonly & Asbury was August 26, 1998, but that he would
continue to receive his base salary through and including September 30, 1998.
8, In paragraph 5 of the Release (Covenant Not to Compete), Mr. StilIwaggon
agreed that for a period of two (2) years commencing October 1, 1998, and ending
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September 30, 2000, he would not directly or indirectly compete with McKonly &
Asbury by servicing any ofthe existing and active clients ofMcKonly & Asbury, who
were existing and active clients as of September 30, 1998.
9, However, both Mr. Stillwaggon and McKonly & Asbury acknowledged that
ethically it was the client's sole discretion to determine whom that client desires to use
for their professional accounting services and, accordingly, agreed that should an active
client of McKonly & Asbury choose the services ofMr. Stillwaggon, Mr. Stillwaggon
agreed to pay McKonly & Asbury in the amount equal to the greater of:
a, one (I) time the annual fees billed by McKonly & Asbury to said client
for the year October I, 1997 through September 30, 1998; or
b, the median average ofthe annual fees billed by McKonly & Asbury to
such client over the previous three (3) years.
10, McKonly & Asbury became aware in July 1999, that Mr. Stillwaggon was
providing accounting services to the Pennsylvania State Nurses Association, which was
an existing and active client ofMcKonly & Asbury as of September 30, 1998.
11. Accordingly, by letter dated August 30, 1999, counsel for McKonly & Asbury
provided invoices for fees received for the annual fees billed to the Pennsylvania State
Nurses Association by McKonly & Asbury for the year October 1,1997, through
September 30,1998, amounting to $16,180.00, A true and correct copy is of that letter
and its enclosures are attached hereto as Exhibit B and incorporated herein by reference.
12. Despite repeated demands, Mr, Stillwaggon has refused to make payment to
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McKonly & Asbury in the amount of$16,180,OO,
COUNT I - Breach of Contract
13. Paragraphs 1 through 12 above are incorporated herein by reference as if set forth
in full.
14. Mr, Stillwaggon has breached paragraph 5 of the Release in that he is servicing a
client who was an active client of McKonly & Asbury as of September 30,1998, and has
refused to compensate McKonly & Asbury as agreed in the Release.
15. As a result of his breach, McKonly & Asbury has been damaged in the amount of
$16,180.00.
WHEREFORE, McKonly & Asbury requests that this Honorable Court enter
judgment in its favor and against Mr. Stillwaggon in the amount of$16,180,OO, plus
accrued interest and costs, and grant such other relief as the Court deems fair and just.
Respectfully submitted:
KEEFER WOOD ALLEN & RAHAL, LLP
Dated: February !}.f'>, 2000
By ~oe~
Stephe L. Grose
Attorney I.D. #31006
210 Walnut Street
p, O. Box 11963
Harrisburg, PA 17108-1963
717-255-8052
Attorneys for Plaintiff
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VERIFICATION
I, Clarence E. Asbury, the undersigned, acknowledge that:
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1. I am the Managing Partner at McKonly & Asbury, LLP, plaintiff herein;
2. The facts set forth in the foregoing Complaint are true and correct to the best of
my knowledge, information, and belief; and
3, I am aware that false statements herein are made subject to the penalties of 18
Pa,C.S, Sec. 4904, relating to unsworn falsification to authorities.
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. ence E, Asbury,
Managing Partner
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WITHDRAW AI, FROM PARTNERSIDP AND GENERAL RELEASE
TillS AGREEMENT is made and entered into this 12th day of October 1998 by and
between McKonly & Asbury, LLP, a Pennsylvania limited liability partnership (hereinafter
referred to as "M&A"), and John C. Stillwaggon, an adult individual (hereinafter referred to as
"Stillwaggon").
WITNESSETH:
WHEREAS, M&A is a Pennsylvania limited liability partnership comprised of certified
public accountants engaged in the practice of public accounting; and
WHEREAS, the partners ofM&A entered into a Partnership Agreement (hereinafter "the
Partnership Agreement") dated January 2, 1998; and
WHEREAS, Stillwaggon resigned as a partner ofM&A on August 18, 1998; and
WHEREAS, StilIwaggon has withdrawn from the partnership pursuant to Paragraph 12A
of the Partnership Agreement; and
WHEREAS, the remaining partners ofM&A have accepted Stillwaggon's withdrawal.
NOW THEREFORE, the parties, intending to be legally bound, hereby agree as follows:
1. Withdrawal of Stillwa2:i$on. The parties hereto affirm that Stillwaggon has
withdrawn as a partner ofM&A, and the remaining partners ofM&A hereby accept his
withdrawal, and waive the notice required for partnership withdrawal under Paragraph 12 of the
Partnership Agreement.
2, Payment of Capital Account. Contemporaneously with the execution of this
Agreement, M&A shall pay Stillwaggon $20,000.00, representing the amount in his Permanent
Capital Account..
3. PaYment of Income Account. M&A shall pay Stillwaggon contemporaneously
with the execution of this Agreement $14,257.00, representing the amount in his Accrued
Income Account.
4. Confidential Information: (A) Stillwaggon represents that there is no written
information or documentation, whether on paper, tape, diskette, magnetic imaging media,
electronic media, or otherwise in his possession or control, which information or documentation
is the property ofM&A or which contains confidential information relating to M&A. To the
extent such items were ever in Stillwaggon's possession, he has returned each and every such
item to M&A. Specifically, but not meant as an exhaustive list, Stillwaggon does not have in his
possession any client files, copies of client files or portions thereot; any property ofM&A
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clients, a client list ofM&A. or the M&A Strategic Plan,
(B) Stillwaggon agrees not to disclose financial information, confidential information,
or proprietary information about the business practices ofM&A. Provided, however, that such
non-disc1osable information shall not include any information lmown generally to the public.
Material disclosure by Stillwaggon of such information shall constitute a material breach of this
Agreement, for which Stillwaggon shall be liable to M&A.
5. Covenant Not to r.oIDpete. Stillwaggon hereby agrees that for a period of two
years, commencing October I, 1998 and ending September 30, 2000, he will not, directly or
indirectly, compete with M&A by servicing any of the existing, active clients ofM&A as of
September 30, 1998, Provided, however, the parties aclmowledge, that ethically, it is in each
client's sole discretion to determine whom a particular client wishes to provide professional
accounting services to himlher/it. Accordingly, should a client choose to use the services of
Stillwaggon, Stillwaggon shall pay to M&A an amount equal to the greater of one (1) time the
annual fees billed by M&A to said client for the year October 1, 1997 through September 30,
1998, or the median average of the annual fees biIled by M&A to such client over the previous
three (3) years (i.e. 10101195 to 9/30/96; 10/01/96 to 9/30/97; and 10/01/97 to 9/30/98).
6. Continued Ell\Plovment throu2:h September 30. 1998. The parties agree that
Stillwaggon's las,t day of employment with M&A was August 26,1998, but M&A continued to
pay StilIwaggon his base salary through and including September 30, 1998. M&A has paid to
Stillwaggon, and Stillwaggon aclmowledges receipt of: (a) His unpaid base salary drawn at the
80% drawing rate used by the Partnership through September 30, 1998; and (b) the balance of his
1998 salary (20% undrawn to date during 1998) for nine months. totaling $14,250.00.
Stillwaggon will cooperate with M&A concerning the transition of work he was performing to
other members ofM&A or their designees.
7. Releases, (A) Except for obligations undertaken by M&A herein, Stillwaggon,
for himself, his personal representatives, heirs, and assigns hereby releases and forever
discharges M&A, its partners, successors and assigns, of and from any and all actions, causes of
action, claims, demands, damages, costs, loss of services, expenses, compensation. consequential
damages, or any other recovery whatsoever relating to Stillwaggon's equity interest in M&A and
StilIwaggon's employment by M&A from the beginning of time to the date of this Release.
(B) Except for obligations undertaken by Stillwaggon herein, or obligations arising
from professional malpractice by StiIlwaggon, M&A, for itself, its partners, representatives,
successors and assigns, hereby releases and forever discharges Stillwaggon, his personal
representatives, heirs, successors and assigns, of and from any and all actions, causes of action,
claims, demands, damages, costs, loss of services, expenses, compensation, consequential
damages, or any other recovery whatsoever relating to StiIlwaggon's participation in M&A and
employment by M&A, from the beginning of time to the date of this release. -
8. Professional Malpractice Insurance. (A) M&A has advised its malpractice
insurance carrier ofStiIlwaggon's withdrawal from the Partnership effective September 30,1998,
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M&A shall provide Stillwaggon with a complete copy ofM&A's malpractice insurance policy
for the current insurance year. Stillwaggon may secure "tail" coverage under said policy, at his
expense for any claims asserted after September 30, 1998, relating to occurrences prior to
October I, 1998. M&A shall have no responsibility for tail coverage for Stillwaggon.
(B) Stillwaggon hereby represents that he has no knowledge or information
concerning any act or inaction which would give rise to any professional liability claim against
M&.A.
9. Stillwa~~on's Cash Account. The parties agree that Stillwaggon has no balance in
his cash account.
10, PropertY. At the time of signing of this Agreement, Stillwaggon has turned over
all property in his possession belonging to M&A, including, but not limited to, a computer,
cellular telephone, office keys, security codes, and any other item or items of property belonging
to M&A.
II. Confidentiality of this Agreement. The parties hereto agree that the terms and
conditions of this Agreement are confidential and shall not be disclosed by either party to anyone
except to their attorneys and accountants.
12. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all previous proposals, oral or
written, and all prior negotiations, conversations or discussions between the parties related to the
subject matter of this Agreement.
13. Miscellaneous Provisions. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against any party. The parties intend that each agreement and
covenant contained herein shall have independent significance, If any party has breached any
agreement or covenant contained herein in any respect, the fact that there exists another
agreement or covenant relating to the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first agreement or covenant.
14. Continuin~ Obligation. This Agreement shall be binding upon the parties
hereto, their heirs, executors, administrators, assigns, successors, beneficiaries, employees and
agents, and all other persons asserting claims by or on behalf of or through a party hereto, based
or founded upon any of the claims released herein,
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day
and year first above written.
WITNESS:
McKONLY & ASBURY, LLP
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Cl, ence E. Asbury, Managing P
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John C. Stillwaggo'
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August 30, 1999
717-612-5802
PERSONAL AND CONFIDENTIAL
John C. Stillwaggon. CPA
R.C, Holsinger Associates, P.C.
Nortbridge Office Plaza
117 VIP Drive, Suite 220
Wexford, PA 15090
Dear John:
In response to your letter dated August 10, 1999, I enclose copies of the invoices for fees
received by McKonly & Asbury. LLP from its client Pennsylvania Nurses Association for the
period oflookback under your Settlement Agreement with McKonly & Asbury. As you can see,
McKonly & Asbury received total fees of $16, 180 for the relevant period.
My understanding from discussion with the partners at McKonly & Asbury is that they at
no time agreed to a schedule of payments over a period oftime. Thus, I request that you make
payment of the full amount immediately to McKonly & Asbury.
I remind you that McKonly & Asbury paid you for the buyout of your partnership interests
well in advance of the payment due dates,
Very truly yours,
KEEFER WOOD ALLEN & RAHAL, LLP
By
Wayne M. Pecht
WMP:cjr
Enclosures
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Cl..ARENC;E E. ASBURY, CPA
T!:RRYL HARRIS. CPA
ROBERT ARoMAKO. CPA
JOHN CSTILLWAGGON, CPA
GARY). DUBAS. CPA
HENRY F. McKONLY, JR., CPA (Ret.)
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McKoNLY~AsBURY
CERTIFIED PUBUC ACCOUNTANTS
Mareh 2, 1998
MEMBERS
AMERICAN INSTITUTE OF
CERT1FIED PUBLIC ACCOUNTANTS
PENNSYLVANIA lNSi'TUTE OF
CERTIFIED PUBLIC ACCO_UNTANTS
PENNSYLVANIA NURSES ASSOCIATION
2578 INTERSTATE DR
PO BOX 68525
HARRISBURG PA 17106-8525
IN ACCOUNT WITH
Due upon presentation McKONLY &. ASBURY
for professional services rendered re, (ale 25377) F
Preparation of amended 990-Ts for
1993. 1994 and 1995 $750,00
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A FINANCE CHARGE OF ONE AND ONE-HALF (1 v,,) PERc:ENT per mont:h (ANNUAL
RATE OF 1"8%) will be added to any account balance which remains outsLanding for
more than TH1RTY (30) DAYS from the date s.uch balance is first invoiced.
415 FALLOWAELD ROAD
2ND flOOR. CAMP HILL. PA 17011
(717) 761-7910. FAX (717) 761-7944
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MAILING ADDRESS; P.O. BOx 1 J.Jl
HARRISBURG. PA 17105
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c:t.4.RENCE~E. ASBURY, CPA
TERRY L HARRiS. CPA
ROBERT A ROMAKO, CPA
JOHN C.511LLWAGGON, CPA
GARY J. DUBAS, CPA
H~RY F. McKqNLY.lR.. CPA (Ret)
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McKoNLY~AsBURY
CERTIFIED PUBLIC ACCOUNTANTS
May 15, 1998
MEMBERS
AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
PENNSYLVANIA INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
PENNSYLVANIA NURSES ASSOCIATION
2578 INTERSTATE DR
PO BOX !i8525
HARRISBURG PA 17106-8525
IN ACCOUNT WITH
Due upon presentation
MCKONLY &. ASBURY
for professional services rendered re:
(ale 25377) F
Meetings and phone eal1s from
January to April regarding
the divesting of PNA (11. 5
hours @ $120jhr.)
$1. 380.00
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A FINANCE CHARGE OF ONE AND ONE-HAI.F (1-v..) PERCENT per month (ANNUAl.
RATE OF 180;0) will be added to any account balance which remains outstanding for
more than THIRTY {30} DAYS from the: date such balance ls first invoiced.
41 5 FALLOWFIELD ROAD
2ND FLOOR. CAMP HrlL. PA 1 i011
(711) 761-7910' FAX {717) 761-7944
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MAILING ADDRESS: P.O. BOX 1331
HARRISBURG. PA 17105
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McKoNLYS3ASBURY LLP
CLARENCE E. ASBURY, CPA, CVA
TERRY L HARRIS, CPA
ROBERT A. ROMAKO, CPA
GARYI. DUBAS,CPA
SCOTT A. HEINTZELMAN,CPA,CN\A,CFE
HENRY F. McKONLY, JR., CPA (Ret.)
CERTIFIED PUBLIC ACCOUNTANTS
November 30, 1998
MEMBERS
AMERICAN iNSTITUTE OF
CERTIfiED PUBLIC ACCOUNTANTS
PENNSYLVANIA INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
PENNSYLVANIA STATE NURSES ASSOCIATION
2578 INTERSTATE DR
PO BOX 68525
HARRISBURG FA 17106-8525
IN ACCOUNT WITH
Due upon presentation
MCKONLY & ASBURY LLP
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For professionaJ services rendered re:,
(a/c 25377) F
Audit of the accounting records of
PA State Nurses Association for the
year ended June 30, 1998 and issuance
of report thereon; preparation of FonD.
990. and BCO and LM2 reports for the
year then ended (per agreement)
$ 7,800.00
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Audit of the accounting records of
Nursing Foundation of Pennsylvania
for the year ended June 30, 1998 and
issuance of report thereon; preparation
of FOJ:m 990 and BCD report for the year
then ended (per agreement)
Preparation of additional information to
resubmit amended Forms 990-T for 1994
and 1995 per IRS request
5,700.00
550,00
$14,050,00
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A FINANCE CHARc;E OF ONE AND ONE-HALF (1l>) PERCENT per month (ANNUAL
RATE OF 180/0) will be added to any account balance which remains outstanding for
more than THIRTY (30) DAYS from the date such balance is first invoiced.
415 FALLOWflELD ROAD
2ND FLOOR. CAMP Hll,Lf PA 17011
{,71.7j7G-l_?S>')O .!;4.X 17'7)75J_7944
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MAILING ADDRESS: P_O. BOX 1331
HARRISBURG, PA 171 OS
WEB SITE: www.macpas_ccm
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221284.WPD
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
McKONL Y & ASBURY, LLP
415 Fallowfield Road, Second Floor
Camp Hill, Pennsylvania 17011
CIVIL DMSION
No, 2000-1141 Civil Term
Plaintiff,
ANSWER AND NEW MATTER
vs,
CIVIL ACTION - LAW
JOHNC, STILLWAGGON
Northridge Office Plaza
117 VIP Drive, Suite 220
Wexford, Pennsylvania 15090
Filed On Behalf of Defendant,
John C. Stillwaggon
Counsel of Record For This Party:
Defendant.
JEFFREY B. BALICKI, ESQUIRE
Pa, I.D, No. 52936
TO ADVERSE PARTIES
FELDSTEIN GRlNBERG STEIN
& McKEE
Firm No. 084
428 Boulevard of the Allies
Pittsburgh, PA 15219
(412) 471-0677
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 'udgement may be
entered against you.
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ey for Defe
JURY TRIAL DEMANDED
2212S4.WPD
McKONL Y & ASBURY, LLP
415 Fallowfield Road, Second Floor
Camp Hill, Pennsylvania 17011
IN TIIE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
vs,
No, 2000-1141 Civil Term
JOHN C, STILL W AGGON
Northridge Office Plaza
117 VIP Drive, Suite 220
Wexford, Pennsylvania 15090
CIVIL ACTION - LAW
JURY TRlAL DEMANDED
Defendant
ANSWER AND NEW MATTER
AND NOW comes the Defendant John C, StilIwaggon by and through his attorneys,
Feldstein Grinberg Stein & McKee and Jeffrey B, Balicki, Esquire, and files the following
Answer and New Matter, and in support thereof avers as follows:
ANSWER
1. Admitted,
2. Admitted.
3. Admitted.
4, Admitted,
5. Admitted,
6. Admitted with the clarification that the agreement attached to Plaintiff s
Complaint as Exhibit "A" (the "Release") does not contain any payment terms. By subsequent
oral modification, the parties agreed that any amounts due and owing under the Release would
be payable over a three (3) year period in equal installments, with the payment date being the
first of each year,
7. Admitted.
8. Denied. Exhibit "A" attached to Plaintiffs Complaint is a written document
which speaks for itself. By way of further answer, Plaintiffs allegations constitute a conclusion
oflaw for which no responsive pleading is required, To the extent that an answer is necessary,
the parties agreed that Defendant would be permitted to continue providing professional
accounting services to present and former clients of Plaintiff should the client(s) desire to use
Defendant's services,
9. Admitted in part and denied in part. Defendant admits that clients have the sole
discretion who to choose for their professional accounting services. Exhibit "A" attached to
Plaintiff s Complaint is a written document which speaks for itself. By way of further answer,
Plaintiff s allegations constitute a conclusion of law for which no responsive pleading is required
and are therefore denied.
10. Defendant is without sufficient !mow ledge and information to form a belief as to
when Plaintiff "became aware" that Defendant was performing professional accounting services
for the Pennsylvania State Nurses Association ("PSNA") and therefore denies the same, It is
admitted that Defendant provided professional accounting services on behalf of the PSNA in
1999,
II, Admitted in part and denied in part. It is admitted that Plaintiff s counsel sent
Defendant correspondence dated August 30, 1999 making a demand for payment and enclosed
the three (3) invoices attached to Plaintiffs Complaint as Exhibit "B", It is expressly denied that
all of the fees reflected on the invoices were billed during the period of October I, 1997 through
September 30, 1998 or that the services were rendered during this time period. It is expressly
denied that Plaintiffs counsel's correspondence dated August 30,1999 was its first demand. To
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the contrary, Plaintiff has provided invoices on a piece-meal basis and changed its theory of
liability and amounts due and owing under the Release no less than three (3) times commencing
with Plaintiffs counsel's letter dated July 6, 1999 demanding Thirteen Thousand Five Hundred
($13,500.00) Dollars.
12. Admitted.
COUNT I - Breach of Contract
13. Defendant incorporates by reference Paragraphs 1 through 12 above as though set
forth herein in fueir entirety,
14. Denied. The allegations of Paragraph 14 of Plaintiffs Complaint constitute a
conclusion of law for which no responsive pleading is required. To the extent that an answer is
necessary, it is admitted that Defendant provided professional accounting services to PSNA in
1999, It is expressly denied that Defendant has refused to compensate Plaintiff as agreed in the
Release, To the contrary, Defendant has sent the first installment due and owing to Plaintiff.
15. Denied, The allegations of Paragraph 15 of Plaintiffs Complaint constitute a
conclusion of law for which no responsive pleading is required, To the extent that an answer is
necessary, it is denied that Plaintiff billed PSNA $16,180.00 for the alleged services rendered
during October 1,1997 through September 30,1998 or that the services valued at $16,180.00
were allegedly rendered during this time period,
WHEREFORE, Defendant John C. Stillwaggon requests that Plaintiffs
Complaint be dismissed and judgment entered in his favor together with costs and such other
relief as the Court deems appropriate,
3
NEW MATTER
16. Defendant incorporates by reference Paragraphs 1 through 15 above as though set
forth herein in their entirety.
17. Paragraph 5 of the Release reads in pertinent part as follows:
Accordingly, should a client choose to use the services of [Defendant],
[Defendant] shall pay to [Plaintiff] an amount equal to the greater of one (1) time
the armual fees billed by [Plaintiff] to said client for the year October 1, 1997
through September 30, 1998, or the median average of the armual fees billed by
[Plaintiff] to such client over the previous three (3) years (i.e. 10/01/95 to 9/30/96;
10/01/96 to 9/30/97; and 10/01/97 to 9/30/98).
18, During the period of October I, 1997 through September 30,1998 (the "Relevant
Time Period"), Plaintiff issued three (3) invoices for net amounts due as follows:
November 28, 1997 -
$6,000,00
March 2,1998
$ 750.00
May 15, 1998
$1,380.00
The total amount of "armual fees billed" by Plaintiff to PSNA during the Relevant Time Period is
Eight Thousand One Hundred Thirty ($8,130.00) Dollars,
19. The Release does not provide for any payment terms or interest due in the event a
client chose to use Defendant's accounting services over Plaintiff's,
20. Subsequent to execution of the Release and at a meeting at a Presbyterian Church,
a partner and Plaintiff's authorized agent, Terry L. Harris, CPA, informed Defendant that he
would discuss an installment plan ofthree (3) years, payable on the first of each year
commencing January 1,2000, for any payments of amounts due and owing under the Release
with his partners.
4
21. A few days later, Terry L. Harris, CPA telephoned Defendant to advise him that
Plaintiff agreed to an instalment plan of three (3) years, payments due on the first of each year,
22, In July 1999, the PSNA contacted Defendant to request a bid for an accounting
audit, PSNA informed Defendant that it had downsized its operations and that Plaintiff would
not lower its audit bid. PSNA further advised Defendant that if Plaintiff did not reduce its bid to
reflect the downsizing, it would not retain Plaintiff to perform the audit. Defendant did not
initiate contact or solicit PSNA's audit business,
23, Plaintiff refused to lower its bid to reflect PSNA's reduced operations.
24. To the best of Defendant's knowledge and belief, based upon Plaintiffs refusal to
adjust its bid to the downsizing ofPSNA's business operations, Plaintiff was not awarded the
audit work in 1999,
25. Accordingly, Plaintiff has suffered no damages as a result of Defendant
performing PSNA's audit for 1999.
,26, Due to the fact Plaintiff would have lost the PSNA account due to its failure to be
competitive, Plaintiff has failed to state a claim upon which relief can be granted for lack of
damages,
27. Due to the fact that Defendant did not "directly or indirectly, compete" with
Plaintiff to perform PSNA's audit work, Plaintiff has failed to state a claim upon which relief can
be granted for failure to plead all conditions precedent to Defendant's alleged obligation under
the Release,
5
WHEREFORE, Defendant John C. Stillwaggon requests this Honorable Court to
enter judgment in his favor and against Plaintiff and to award costs and such other relief as this
Court deems appropriate,
Respectfully submitted,
FELDSTEIN GRINBERG STEIN &
McKEE
"6..
B. Balicki
. No.: 52936
Attorney for Defendant
JURY TRIAL DEMANDED
6
St)lT BY: fELDSTE I ~. GR I tI;'BERG
3-21- 0 :1l:-13AM :, fELDSTEIN.GRINBERG-<
72-1 33-1 3330;#11/11
VERIFICATION
I verify that the statements made in the foregoing Answer and New Matter are
true and correct to the best of my knowledge, information and belief and that I am
authorized to execute this verification. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to
authorities.
Date:
.3!J-I(OO
By:Jf~ ~~ittI
Jo C. Stillwaggon
... ~ . ..
CERTIFICATE OF SERVICE
I, Jeffrey B. Balicki, do hereby certify that a true and correct copy of the
foregoing ANSWER AND NEW MATTER was served via United States First Class Mail,
Postage Prepaid, on March 22. , 2000 on the following:
Stephen L. Grose, Esqnire
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
P,O. Box 11963
Harrisburg, P A 17108-1963
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McKONL Y & ASBURY, LLP
415 Fallowfield Road, Second Floor
Camp Hill, Pennsylvania 17011
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
NO. 2000-1141
JOHN C. STILLWAGGON
Northridge Office Plaza
117 VIP Drive, Suite 220
Wexford, Pennsylvania 15090
CNIL ACTION - LAW
:
Defendant
Jury Trial Demanded
PLAINTIFF'S ANSWER TO NEW MATTER
AND NOW, comes the plaintiff, McKonly & Asbury, LLP, by and through its attorneys,
Keefer Wood Allen & Rahal, LLP, and files the following Answer to New Matter, averring as
follows:
16, Plaintiff incorporates paragraphs 1 through 14 of the Complaint in this matter, as
if set forth in full,
17. Admitted.
18, Denied as stated, It is admitted that the relevant time period is from October 1,
1997, through September 30, 1998. However, paragraph 5 of the Release
indicates that Mr. Stillwagon is responsible for the annual fees billed by McKonly
& Asbury to PSNA "for" the year October 1,1997, through September 30,1998,
not the fees bills "during" the relevant time period. Accordingly, the annual fees
billed by McKonly & Asbury to PSNA "for" the relevant time period was
$16,180.00, as indicated in Exhibit B to the Complaint.
19. Denied as stated. The Release attached as Exhibit A to the Complaint is a written
document, which speaks for itself.
20. Denied as stated, It is admitted that after the execution of the Release, a meeting
was held among Terry Harris and t.he defendant, as well as the pastors ofthe
church, It is also admitted that the possibility of installment payments of the
amount owed under paragraph 5 of the Release over a period of three (3) years
was discussed, However, there was never a specific mention as to when the three
(3) annual payments would co=ence, nor did Mr. Harris agree and state at that
time that he would discuss the installment payment issue with his partners,
21. Denied as stated. The day after the meeting between Mr, Harris and the
defendant, a telephone conversation took place between Mr, Harris and the
defendant. The discussion was whether the defendant would agree to make all
payments owed over a three (3) year period and he agreed to do so, Mr, Harris did
not advise the defendant that the plaintiff had agreed to a three (3) year installment
plan but was trying to be assured defendant would do so before Mr, Harris would
discuss the issue with his partners, Mr. Harris did indicate he personally would
not be opposed to three (3) annual installments.
22, After reasonable investigation, plaintiff is without sufficient knowledge or
information to form a belief as to the truth of the matters asserted. Accordingly,
they are denied and strict proofthereof demanded at trial. By way offurther
answer, PSNA was advised by the plaintiffthat while the downsizing had
occurred, the amount of auditing work for that year would be substantially the
same as the year before, and therefore, the fees charged for the base audit would
not be decreasing, but they likewise would not be increasing,
23, Denied as stated, Plaintiff refused to lower its bid because the work to be
performed by PSNA had not substantially reduced over the prior year, since there
was no material impact on the work to be performed that year by the downsizing.
24, After reasonable investigation, plaintiff is without sufficient knowledge or
information to form a belief as to the truth of the matters asserted, Accordingly,
they are denied and strict proof thereof demanded at trial.
25. Denied. Defendant agreed that if a former client should choose to use his services
over the plaintiff for whatever reason, he would pay the plaintiff an am6i.mt as set
forth in paragraph 5 ofthe Release, Defendant has now breached that agreement
thereby causing the plaintiff damages in the amount of $16, 180.00.
26. Denied as stated, This response states a conclusion of law to which no response is
required, To the extent a response is deemed necessary, it is denied and strict
proof thereof demanded at trial,
27. Denied. Defendant did directly and indirectly compete with the plaintiff, and in
fact, did perform services of one of plaintiff s client which was prohibited for a
period of two (2) years under paragraph 5 of the Release,
Respectfully submitted:
KEEFER WOOD ALLEN & RAHAL, LLP
Dated: April --.!..L, 2000
By .;'~ ~if ~
Stephen:C. Grose
AttorneyLD. #31006
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8052
Attorneys for Plaintiff
VERIFICATION
I, Clarence E, Asbury, the undersigned, acknowledge that:
1. I am the Managing Partner at McKonly & Asbury, LLP, plaintiff herein;
2, I verify that the statements made in the foregoing Answer to New Matter are true
and correct to the best of my knowledge, information, and belief, and that I am authorized to
execute this verification; and
3, I am aware that false statements herein are made subject to the penalties of 18
Pa.C,S, See, 4904, relating to unsworn falsification to authorities,
~
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, McKonly & Asbury, LLP,
hereby certify that I have served the foregoing paper upon counsel of record this date by
depositing a true and correct copy ofthe same in the United States mail, first-class postage
prepaid, addressed as follows:
Jeffrey B. Balick, Esquire
Feldstein, Grinberg, Stein & McKee
428 Boulevard of the Allies
Pittsburgh, P A 15219
KEEFER WOOD ALLEN & RAHAL, LLP
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By A ~.~
Step en L. Grose
Dated: April ~ 1999
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McKONL Y & ASBURY, LLP
IN THE COURT OF COMMON PLEAS
CUMERBLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
NO. 2000 - 1141
JOHN C. STXLLW AGGON
CML ACTION - LAW
Defendant
Jury Trial Demanded
ACCEPTANCE OF SERVICE
I, Jeffrey B, Balicki, Esquire, hereby certify that I am authorized to accept service of the
complaint on behalf ofthe defendant in the above-captioned matter and have done so the date
indicated below,
Date: "3 \ 3 t(X)
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McKONLY & ASBURY, LLP
: IN THE COURT OF COM:MON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 2000-1141
JOHN C. STILLWAGGON
: CIVIL ACTION - LAW
Defendant
: Jury Trial Demanded
PRAECIPE TO SETTLE AND DISCONTINUE
TO THE PROTHONOTARY OF SAID COURT:
Please mark the above matter settled and discontinued, with prejudice.
Respectfully submitted,
KEEFER WOOD ALLEN & RAHAL, LLP
Dated: January ~, 2001
By
~=~ .J,~
'ST HEN L. GROSE
LD. # 31006
210 Walnut Street
P. O. Box 11963
Harrisburg, P A 171 08-1963
(717) 255-8052
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have
served the foregoing paper upon counsel of record tills date by depositing a true and correct copy
of the same in the United States mail, first-class postage prepaid, addressed as follows:
Jeffrey B. Balicki, Esquire
Feldstein, Grinberg, Stein & McKee
428 Boulevard ofthe Allies
Pittsburgh, PA 15219
KEEFER WOOD ALLEN & RAHAL, LLP
By ~~ ~
steph n L. Grose
-
Dated: January ~, 2001
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