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HomeMy WebLinkAbout07-1227406 ALBERT G. FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 ? oL -7 CvI I : CIVIL ACTION -LAW 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 a 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 NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013-3302 (717) 249-3166 SNELBAKER & BRENNEMAN, P. C. By: Attorneys for Plaintiff LAW OFFICES SNELBAKER & BRENNEMAN, P.C. { 41? ALBERT G. FILORETO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.2007 - I a- c 1 ° +^' KRISTY BURKHOLDER, Defendant CIVIL ACTION - LAW COMPLAINT Plaintiff Albert G. Filoreto, by his attorneys, Snelbaker & Brenneman, P. C., submits this Complaint against Kristy Burkholder and in support thereof, states the following: BACKGROUND. 1. Plaintiff Albert G. Filoreto is an adult individual residing at 2407 Ionoff Road, Harrisburg, Pennsylvania, 17110. 2. Defendant Kristy Burkholder is an adult individual residing at 709 Shaffer Street, Enola, Pennsylvania, 17025. 3. Plaintiff is the owner of the real estate and residence located at 2407 Ionoff Road, Harrisburg, Pennsylvania. 4. Plaintiff has and maintains a home equity line of credit in his name through Wachovia Bank, N.A. 5. In January 2003 Defendant was having financial difficulties and was unable to manage and pay off debt she had incurred. 6. In January 2003 Plaintiff and Defendant agreed that Plaintiff would draw upon his Wachovia Bank line of credit for purposes of paying off certain debts and expenses of Defendant in consideration or exchange for which, Defendant agreed to pay on Plaintiffs Wachovia Bank LAW OFFICES line of credit the sum of at least $250.00 each month until the portion of the line of credit SNELBAKER & BRENNEMAN, RIC representing debt incurred for the payment of Defendant's debt, with applicable interest was paid in full. 7. In furtherance of the parties' agreement and understanding as described above, Plaintiff, at the request of Defendant, on January 23, 2003 drew upon his Wachovia Bank line of credit and paid debts incurred by Defendant in the amount of $19,940.55. 8. In furtherance of the parties' agreement and understanding as described above, Plaintiff, at the request of Defendant, on May 13, 2003 drew upon his Wachovia Bank line of credit and paid debt incurred by Defendant in the amount of $1,620.00. COUNTI Breach of Contract 9. The averments of Paragraphs 1 through 8, inclusive, above, are incorporated by reference herein. 10. Defendant commencing in February 2003 made regular monthly payments of at least $250.00 until August 2006. 11. All payments made by Defendant from February 2003 to August 2006 were applied against the debt incurred for Defendant by Plaintiff in Plaintiffs Wachovia Bank line of credit. Defendant failed to pay a payment September 2006, but made a payment October 2006. 12. Defendant has failed and refused to make monthly payments to Plaintiff after October 2006 despite demand by Plaintiff to do so. 13. Defendant's refusal and failure to make regular monthly payments to Plaintiff as agreed to constitutes a material breach of the parties' agreement. 14. Since October 2006 Defendant has indicated that she will make no further payments LAW OFFICES SNELBAKER & BRENNEMAN, P.C. to Plaintiff. 2 4 I 15. Given Defendant's failure and refusal to pay Plaintiff as agreed to by the parties, Plaintiff has been required to pay $250.00 per month on the Wachovia Bank line of credit since November 2006. 16. As a direct, factual and proximate result of Defendant's breach of contract and/or repudiation, Defendant owes Plaintiff the sum of $13,241.52 plus interest at 8% per annum, being the rate of interest on the Wachovia Bank line of credit. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $13,241.52 together with interest at 8% per annum and costs of this suit or in the alternative, the sum of $1,150.00 together with $250.00 each month after March 2007 until such time as an award or verdict is entered in favor of the Plaintiff, together with interest and costs of this suit. COUNTII Unjust Enrichment 17. The averments of Paragraphs 1 through 16, inclusive, above, are incorporated by reference herein. 18. The funds provided for or on behalf of Defendant by Plaintiff through Plaintiffs Wachovia Bank line of credit were not provided by Plaintiff to Defendant as a gratuity or gift. 19. Defendant wrongly secured benefits from the sums of money provided by Plaintiff to or on behalf of Defendant that would be unconscionable for Defendant to retain. 20. Defendant has been unjustly enriched at the expense of Plaintiff in the amount of $13,241.52. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $13,241.52, together with interest and costs of this action. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 3 . • The total claims of Plaintiff in this action, exclusive of interest and costs, as of the filing of this Complaint do not exceed the jurisdictional limits for mandatory arbitration in Cumberland County. SNELBAKER & BRENNEMAN, P. C. BY: 1 Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Date: March 6, 2007 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 4 . . VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. lb-tA -? - ? &4c) Albert G. Filoreto Date: March 6, 2007 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. n U ti ,y C]1 3 L.t ?? ? jai SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant, Kristy Burkholder ALBERT G. FILORETO, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO.: 2007-1227 CIVIL TERM V. KRISTY BURKHOLDER, Defendant : CIVIL ACTION - IN LAW NOTICE TO PLEAD TO: Albert G. Filoreto. c/o Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 YOU ARE HEREBY NOTIFIED to plead the within New Matter and Counterclaim within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: March 29, 2007 Paige acdonald-Matthes, Esquire Attorney I.D. #66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Attorneys for Defendant 93298.13[29/07 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant, Kristy Burkholder ALBERT FILORETO, Plaintiff V. KRISTY BURKHOLDER) Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 2007-1227 CIVIL TERM CIVIL ACTION - IN LAW DEFENDANT'S ANSWER, TOGETHER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Kristy Burkholder ("Defendant"), by and through her counsel, Serratelli, Schiffnan, Brown & Calhoon, P.C., and files her Answer, Together with New Matter and Counterclaim to Plaintiff's Complaint, and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Defendant is without knowledge sufficient to form a belief as to the truth of the matters asserted in paragraph 4 of Plaintiff's Complaint and strict proof of the same is demanded at the time of trial. 93298.1 3/29/07 5. Denied. It is denied that "in January Defendant was having financial difficulties and was unable to manage and payoff debt she had incurred." 6. Denied. It is denied that "in January 2003 Plaintiff and Defendant agreed that Plaintiff would draw upon his Wachovia Bank line of credit for purposes of paying off certain debts and expenses of Defendant in consideration or exchange for which, [Burkholder] agreed to pay on Plaintiff's Wachovia Bank line of credit the sum of at least $250.00 each month until the portion of the line of credit representing debt incurred for the payment of Defendant's debt, with applicable interest was paid in full. To the contrary, Plaintiff and Defendant became engaged on January 1, 2003. Shortly following the date of their engagement the parties discussed their respective financial situations and determined that it would be prudent for them to consolidate their individual debt and work together to pay off the same for their joint future benefit. In furtherance of this agreement, the parties' agreed that the home equity line of credit would be used to pay off the parties' individual debts. In turn, Defendant agreed to give up her apartment, move into Plaintiff's home, and to give Plaintiff the sum of $250 per month in lieu of paying rent to a third party. Plaintiff in turn received the benefit from this arrangement in the form of deductible interest on the home equity line of credit to off-set his own personal income tax obligations. Finally, the parties agreed that this arrangement was solely conditioned on the parties staying together in a committed and exclusive relationship. 93298.1 3/29/07 2 7. Defendant is without knowledge sufficient to form a belief as to the truth of the matters asserted in paragraph 7 of Plaintiff s Complaint and strict proof of the same is demanded at the time of trial. 8. Defendant is without knowledge sufficient to form a belief as to the truth of the matters asserted in paragraph 8 of Plaintiffs Complaint and strict proof of the same is demanded at the time of trial. COUNTI Breach of Contract 9. Incorporation paragraph. No response required. 10. Admitted. 11. Admitted in part and denied in part. It is admitted that Defendant made payments in the sum of $250 per month toward the home equity line of credit between February 2003 and August 2006. It is denied that the payments "were applied against the debt incurred for Defendant by Plaintiff in Plaintiff's Wachovia Bank line of credit." It is further denied that "Defendant failed to make a payment [in] September 2006." 12. Admitted in part and denied in part. It is admitted that Defendant did not make any payments to Plaintiff after October 2006. It is denied that Defendant was obligated to make any payments after October 2006. By way of further reply, on July 15, 2006 Defendant moved out of Plaintiff s home due to problems in the parties' relationship. In September 2006, Defendant confirmed that Plaintiff was having an affair with another woman and consequently the parties' engagement and business relationship terminated. 93298.13/29/07 13. Denied. The averments set forth in paragraph 13 state conclusions of law to which no response is required. 14. Admitted. By way of further reply, Defendant is not obligated to make any payments to Plaintiff. 15. Defendant is without knowledge sufficient to form a belief as to the truth of the matters asserted in paragraph 15 of Plaintiff's Complaint and strict proof of the same is demanded at the time of trial. 16. Defendant is without knowledge sufficient to form a belief as to the truth of the matters asserted in paragraph 16 of Plaintiff's Complaint and strict proof of the same is demanded at the time of trial. WHEREFORE, Defendant, Kristy Burkholder respectfully requests that this Honorable Court enter judgment in her favor and against Plaintiff, dismiss Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. COUNT II Unjust Enrichment 17. Incorporation paragraph. No response required. 18. Denied. The averments set forth in paragraph 18 of Plaintiff's Complaint state conclusions of law to which no response is required. 19. Denied. The averments set forth in paragraph 19 of Plaintiff's Complaint state conclusions of law to which no response is required. In the event that it is later judicially determined that is so required it is denied that "Defendant wrongfully secured benefits from the sums of money provided by Plaintiff to or on behalf of 93298.1 3/29/07 4 Defendant that would be unconscionable for Defendant to retain." To the contrary, for a period in excess of five (5) years Defendant provided accountingibook keeping services for Plaintiff's two (2) business enterprises. Defendant provided the accountinglbook keeping services to Plaintiff at least four (4) days per week for a period of five (5) years. Despite repeated and numerous requests for compensation for her services, Plaintiff has failed and continues to fail to compensate Defendant for those services she provided. 20. Denied. The averments set forth in paragraph 20 of Plaintiff's Complaint state conclusions of law to which no response is required. WHEREFORE, Defendant, Kristy Burkholder respectfully requests that this Honorable Court enter judgment in her favor and against Plaintiff, dismiss Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. NEW MATTER 21. The averments set forth in paragraphs 1 through 20 are incorporated herein by reference as if more fully set forth at length. 22. There is no enforceable "contract" between the parties whereby Defendant "owes" Plaintiff the sum of $13,241.52 together with interest at 8% per annum and costs of this suit. 23. The Defendant did not enter into any contract with Plaintiff whereby Defendant agreed to pay Plaintiff 8% interest per annum on any "loan." 24. Plaintiff's claim for 8% interest per annum is usurious and is contrary to Pennsylvania law. 25. Plaintiff's claims are barred under the Statute of Frauds. 93298.1 3/29/07 5 26. Plaintiff's claims are barred under the doctrine of equitable estoppel. 27. Plaintiff s equitable claims are barred under the doctrine of "unclean hands." 28. Plaintiff s claims are barred under the doctrine of assumption of risk. 29. Plaintiff s claims are barred under the doctrine of laches. WHEREFORE, Defendant, Kristy Burkholder respectfully request that this Honorable Court enter judgment in her favor and against Plaintiff, and further award Defendant all such other relief as is proper and just. COUNTERCLAIM 30. The averments set forth in paragraphs 1 through 29 are incorporated herein by reference as if more fully set forth at length. 31. Plaintiff operates two (2) business enterprises, to wit: "Full Spectrum Resources" and "The Flooring Guys". 32. Defendant began providing managerial/ book keeping services for Full Spectrum Resources in 2001 on a part-time basis and continued providing those services until May 30, 2006. 33. Defendant began providing managerial/ book keeping services for The Flooring Guys on November 3, 2003 on a part-time basis and continued providing those services until May 30, 2006. 34. In addition to the managerial/ book keeping services Defendant provided for The Flooring Guys, Defendant also did the payroll for the nine employees who work for the business. 35. On average, Defendant spent 4 days a week, 3 hours per day working for both Full Spectrum Resources and The Flooring Guys for a total of 12 hours per week. 93298.1 3/29/07 6 36. Based on Defendant's full-time wages as an Operations Manager and Accounts Payable/Receivable Manager during the period 2001 through May 30, 2006 that were reported for federal, state and local tax purposes, Defendant's average hourly rate of pay for the type of book keeping services provided to Plaintiff during this period was $17.55/hour. 37. The services Defendant provided on behalf of her full-time employer in the positions of Operations Manager and Accounts Payable/Receivable Manager were substantial similar and/or identical to the type of services that Defendant provided to Plaintiff for his two (2) businesses during the same time period. 38. Based on the services Defendant provided to Plaintiff between 2001 and 2006, Plaintiff owes Defendant the gross sum of $54,756.00. This sum is broken down as follows: $17.55/hr x 3 hours/day= $52.65/day $52.65/day x 4 days/week= $210.60/week $210.60/week x 52 weeks/year=$10,951.20 $10,951.20/year x 5 years=$54,756.00 39. Despite repeated and numerous requests for compensation for the managerial/book keeping and payroll services Defendant provided to Plaintiff for the past five (5) years, Plaintiff has failed and has otherwise refused to pay Defendant the sum of $54,756.00. 40. The managerial/book keeping and payroll services provided by Defendant to Plaintiff were not intended to be gratuitous or a gift. 93298.13/29/07 7 WHEREFORE, Defendant, Kristy Burkholder respectfully requests that this Honorable Court enter judgment in her favor and against Plaintiff in the sum of $54,756.00, together with statutory interest and costs of suit, and further award Defendant all such other relief as is proper and just. Respectfully submitted, Date: March 30, 2007?1? Paige Macdonald-Matthes, Esquire Attorney I.D. #66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Attorneys for Defendant, Kristy Burkholder 93298.13/29/07 8 WHEREFORE, Defendant, Kristy Burkholder respectfully requests that this Honorable Court enter judgment in her favor and against Plaintiff in the sum of $54,756.00, together with statutory interest and costs of suit, and further award Defendant all such other relief as is proper and just. Respectfully submitted, Date: March 29, 2007 q Paige Macdonald-Matthes, Esquire Attorney I.D. 466266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Attorneys for Defendant, Kristy Burkholder 93298.1 3/29/07 8 Mar 28 07 11:00p p.1 VERIFICATION I verify that the statements made in the foregoing Answer Together with New Matter and Counterclaim to Plaintiffs' Complaint are true. and correct. I understand that false statements herein are made subject to the penalties of 13 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 3-2L-01 'stv B older 9 RECEIVED TIME MAR.28, 9:57PM CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 29th day of March 2007, I served a true and correct copy of the foregoing Defendant's Answer, Together with New Matter and Counterclaim, via Overnight Mail upon the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff 7S:Z Paige Macdonald-Matthes 93299.1 3/29/07 10 T -171 /j rO ALBERT G. FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 1227 CIVIL ACTION - LAW NOTICE TO PLEAD TO: Kristy Burkholder, Defendant and Paige Macdonald-Matthes, Esquire Serratelli, Schiffinan, Brown & Calhoon, P. C. 2080 Linglestown Road Harrisburg, PA 17110 You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a Default Judgment may be entered against you. SNELBAKER & BRENNEMAN, P. C. Date: April 18, 2007 By: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert G. Filoreto LAW OFFICES SNELBAKER & BRENNEMAN, P.C. ALBERT G. FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007 - 1227 CIVIL ACTION - LAW REPLY TO NEW MATTER AND COUNTERCLAIM WITH NEW MATTER Plaintiff submits this Reply to New Matter and Counterclaim with New Matter as follows: REPLY TO NEW MATTER 21. Paragraph 21 of Defendant's New Matter should be stricken as improperly requiring a reply to an answer which is not a recognized pleading under the Pennsylvania Rules of Civil Procedure. The allegations of fact set forth in Defendant's Answer are denied in their entirety to the extent they include facts contrary to the averments of Plaintiffs Complaint or facts not contained in Defendant's New Matter not specifically denied in this Reply. 22. Denied. Paragraph 22 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a reply is deemed necessary, it is denied that there is no enforceable contract for the reasons set forth in Plaintiffs Complaint. 23. Denied. Paragraph 23 of Defendant's New Matter contains an unwarranted LAW OFFICES SNELBAKER & BRENNEMAN, P.C. conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). To the extent a reply is deemed necessary, Defendant entered into the contract and agreement as specified in the Complaint. 24. Denied. Paragraph 24 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). By way of further reply, if 8% interest is in fact usurious, the interest rate being charged by Wachovia Bank and any other lender with an interest rate of 8% or higher is usurious. 25. Paragraph 25 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). 26. Paragraph 26 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). 27. Paragraph 27 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). 28. Paragraph 28 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). 29. Paragraph 29 of Defendant's New Matter contains an unwarranted conclusion of law to which no response is required by this party pursuant to Pa.R.C.P. 1029(d). WHEREFORE, Plaintiff requests that judgment be entered in his favor and against Defendant in accordance with the demand for relief set forth in his Complaint. REPLY TO COUNTERCLAIM 30. The averments of Paragraphs 21 through 29, above, are incorporated by reference herein. 31. Admitted, with the qualification that the correct name of The Flooring Guys business is The Flooring Guys, LLC (hereinafter "The Flooring Guys") 32. Admitted in part; denied in part. It is denied that Defendant provided any managerial LAW OFFICES SNELBAKER & BRENNEMAN, P.C. services for Full Spectrum Resources. On the contrary, Defendant never provided managerial services. Although it is admitted only that Defendant provided minimal bookkeeping services, 2 what minimal bookkeeping services she did were done voluntarily and gratuitously in consideration of the personal relationship she had with Plaintiff at the time with no expectation of compensation. 33. Admitted in part; denied in part. It is denied that Defendant provided any managerial services for The Flooring Guys. On the contrary, Defendant never provided managerial services. Although it is admitted only that Defendant provided minimal bookkeeping services, what minimal bookkeeping services she did were done voluntarily and gratuitously in consideration of the personal relationship she had with Plaintiff at the time with no expectation of compensation. 34. Admitted in part; denied in part. The averments of Paragraph 33, above, are incorporated by reference herein. It is further denied that Defendant did payroll for employees of The Flooring Guys. The Flooring Guys had no employees for who payroll needed to be done. 35. Denied. It is denied that Defendant spent 4 days a week, 3 hours per day for a total of 12 hours a week working for both Full Spectrum Resources and The Flooring Guys. It is further denied that Defendant worked for either business. On the contrary, what minimal bookkeeping services were done by Defendant came nowhere close to 12 hours a week and were done voluntarily and gratuitously by Defendant in consideration of the personal relationship she had with Plaintiff at the time, with no expectation of compensation. 36. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief concerning the truth of the allegations contained in Paragraph 36 of Defendant's Counterclaim; therefore, same are denied and proof thereof demanded. 37. Denied. After reasonable investigation, Plaintiff is without sufficient information to LAW OFFICES SNELBAKER & BRENNEMAN, P.C. form a belief concerning the truth of the allegations contained in Paragraph 36 of Defendant's Counterclaim; therefore, same are denied and proof thereof demanded. Paragraph 37 of 3 Defendant's Counterclaim concerns services Defendant alleges to have provided any full time employer; therefore, same are denied and proof thereof demanded. Accordingly, Plaintiff cannot admit or deny that such services were "substantial similar" or identical to the services she claims to have provided Plaintiffs businesses. 38. Denied. It is denied that Plaintiff owes Defendant any sum of money for services provided for the reasons set forth in this Reply to Counterclaim and Plaintiffs New Matter, the averments of which are incorporated by reference herein. 39. Admitted in part; denied in part. It is denied that Defendant made repeated and numerous requests for compensation for managerial, bookkeeping and payroll services. It is further denied that Defendant performed any managerial or payroll services as alleged in her Counterclaim for which services Defendant requested compensation. It is admitted that Plaintiff has failed and refused to pay Defendant the sum of $54,756.00, which amount was never demanded by Defendant until the initiation of Plaintiffs lawsuit against her and to which amount Defendant is not entitled. 40. Denied. It is denied that Defendant provided Plaintiff with any managerial and payroll services for the reasons set forth in Paragraphs 32, 33 and 34 above, the averments of which are incorporated by reference herein. It is also denied that the minimal bookkeeping services provided were not intended to be gratuitous or a gift. On the contrary, such services were voluntary and gratuitously provided by Defendant in consideration of the personal relationship between the parties at the time with no expectation or understanding that Defendant would be compensated. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 4 WHEREFORE, Plaintiff requests that judgment be entered in his favor and against Defendant in accordance with the demand for relief set forth in his Complaint and that judgment be entered against Defendant with respect to Defendant's Counterclaim. NEW MATTER TO COUNTERCLAIM 41. Defendant's Counterclaim fails to set forth a claim or cause of action upon which relief may be granted. 42. Defendant commenced bookkeeping services without any expectation of compensation. 43. Defendant commenced bookkeeping services without any understanding or agreement that she would be compensated. 44. Defendant commenced bookkeeping services without requesting that she be compensated. 45. Defendant provided bookkeeping service gratuitously. 46. Defendant's claims are barred in whole or in part by the applicable statute of limitations. 47. Defendant's claims are barred by the application of the doctrine of accord and satisfaction. 48. Defendant's claims are barred under the doctrine of estoppel and/or equitable estoppel. 49. Defendant's claims are barred due to payment. 50. Defendant's claims are barred due to release and/or waiver. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 5 51. "The Flooring Guys" referred to by Defendant in her Counterclaim is properly known as The Flooring Guys, LLC. 52. Plaintiff is not personally liable for the debts or claims against The Flooring Guys, LLC. 53. Defendant's Answer, New Matter and Counterclaim is signed and dated on two separate pages by Defendant's attorney with one page dated March 30, 2007 and another page dated March 29, 2007. 54. Defendant's Verification is dated March 28, 2007. 55. Defendant's Verification is a nullity having been dated before the date(s) of her Answer, New Matter and Counterclaim. WHEREFORE, Plaintiff requests that judgment be entered in his favor and against Defendant in accordance with the demand for relief set forth in his Complaint and that judgment be entered against Defendant with respect to Defendant's Counterclaim. SNELBAKER & BRENNEMAN, P. C. BY: ( Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorney for Plaintiff Albert G. Filoreto Date: April 18, 2007 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 6 VERIFICATION I verify that the statements made in the foregoing Reply to New Matter and Counterclaim with New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. Albert G. Filoreto Date: April 18, 2007 CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Reply to New Matter and Counterclaim with New Matter to be served upon the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Paige Macdonald-Matthes, Esquire Serratelli, Schiffinan, Brown & Calhoon, P. C. 2080 Linglestown Road Harrisburg, PA 17110 SNELBAKER & BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert G. Filoreto Date: April 18, 2007 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. P,7 -.7 - ?. _? ?? -r9 _? _ ?_-? - -r 'x'1 is?_ .. .: 5 _ - t V 4?,? .- .. _. ?... ? ? ??.? .'-Y? ? ?; ??.; SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant, Kristy Burkholder ALBERT FILORETO. Plaintiff V. KRISTY BURKHOLDER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 2007-1227 CIVIL TERM CIVIL ACTION - IN LAW ANSWER TO PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM AND NOW, comes Defendant, Kristy Burkholder ("Defendant"), by and through her counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files her Answer to Plaintiff's New Matter to Defendant's Counterclaim, and in support thereof aver as follows: 41. Denied. The averments set forth in Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 42. Denied. It is denied that Defendant commenced bookkeeping services without any expectation of compensation. To the contrary, Defendant expected to be compensated for her bookkeeping services at all times relevant and repeatedly made those expectations known to Plaintiffs. 43. Denied. It is denied that Defendant commenced bookkeeping services without any understanding or agreement that she would be compensated. To the contrary, 93298.1 5/4/07 Defendant understood that she would be compensated for her bookkeeping services based on representations made by both Plaintiff and Plaintiff's business associate in The Flooring Guys. 44. Denied. It is denied that Defendant commenced bookkeeping services without requesting that she be compensated. To the contrary, Defendant routinely requested that she be compensated for the bookkeeping services that she performed on Plaintiff's behalf. 45. Denied. It is denied that Defendant provided bookkeeping services "gratuitously." To the contrary, Defendant routinely requested that she be compensated for the bookkeeping services that she performed on Plaintiff's behalf. 46. Denied. The averments set forth in paragraph 46 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 47. Denied. The averments set forth in paragraph 47 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 48. Denied. The averments set forth in paragraph 48 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 49. Denied. The averments set forth in paragraph 49 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 93298.1 5/4/07 2 50. Denied. The averments set forth in paragraph 50 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 51. Denied. The averments set forth in paragraph 51 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 52. Denied. The averments set forth in paragraph 52 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. 53. Admitted. By way of further reply, the Notice to plead was inadvertently dated March 29, 2007 and is clearly a typographical error. 54. Admitted. 55. Denied. The averments set forth in paragraph 55 of Plaintiff's New Matter to Defendant's Counterclaim state conclusions of law to which no response is required. WHEREFORE, Defendant, Kristy Burkholder respectfully requests that this Honorable Court dismiss Plaintiff's New Matter to her Counterclaim with prejudice, enter judgment in her favor and against Plaintiff in the sum of $54,756.00, together with statutory interest and costs of suit, and further award Defendant all such other relief as is proper and just. Date: May 4, 2007 932981 5/4/07 Respectfully submitted, 3 Paige Macdonald-Matthes, Esquire Attorney I.D. #66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Attorneys for Defendant, Kristy Burkholder 93299.1 5/4/07 Mav 04 07 11:372 Kristy BUrki-,O r er VERIFICATION I verify that the statements made in the foregoing Answer to Plaintiffs New Matter to Defendant's Ccxunterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: 5. yq -()7 BAI??JPA Krzsty Bur er 93299.1 43(ITJ i 5 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 4t` day of May 2007, I served a true and correct copy of the foregoing Defendant's Answer, Together with New Matter and Counterclaim, via Overnight Mail upon the following: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff 7s-" ter, " . Paige Macdonald-Matthes 93298.1 5/4/07 6 sA r?* t--- 1 7 l t I-n i, j y? SHERIFF'S RETURN - REGULAR CASE NO: 2007-01227 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FILORETO ALBERT G VS BURKHOLDER KRISTY MARK CONKLIN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BURKHOLDER KRISTY the DEFENDANT , at 1720:00 HOURS, on the 8th day of March , 2007 at 709 SHAFFER STREET ENOLA, PA 17025 by handing to KRISTY BURKHOLDER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge 18.00 14.40 .39 10.00 00 42.791 Do Sworn and Subscibed to ?.6101 before me this day So Answers: 0?1 R. Thomas Kline 03/09/2007 SNELBAKER BRENNEMAN By. I ?- , I? 1/0 Dep y S ri of , A. D. a • ALBERT G. FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 1227 : CIVIL ACTION -LAW CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, by his attorneys, Snelbaker & Brenneman, P. C., certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. SNELBAKER & BRENNEMAN, P. C. Date: June 3, 2008 !«-. Keith O. Brenneman, Esquire Attorney ID #47077 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorney for Plaintiff Albert G. Filoreto LAW OFFICES SNELBAKER & BRENNEMAN, P.C. I / T G. FILORETO, Plaintiff V. TY BURKHOLDER, Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 LAW OFFICES SNELBAKER & BRENNEMAN. P.C. Plaintiff Albert G. Filoreto intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 1227 CIVIL ACTION -LAW SNELBAKER & BRENNEMAN, P. C. Date: April 9, 2008 BY: + ham-" Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert G. Filoreto r ALBERT G. FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007 - 1227 CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Unemployment Compensation Board of Review Commonwealth of Pennsylvania Labor & Industry Building 7th & Forester Streets Harrisburg, PA 17121 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: The initial and subsequent applications for unemployment compensation benefits depicting information submitted by Kristy L. Burkholder, Social Security No. , with respect to unemployment compensation benefits requested and/or received in 2005. All such documents are to be delivered to the undersigned at the law offices of Snelbaker, Brenneman & Spare, P. C., 44 W. Main Street, Mechanicsburg, Pennsylvania. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things requested by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Keith 0. Brenneman, Esquire Attorney ID 447077 Snelbaker & Brenneman, P. C. 44 W. Main St., Mechanicsburg, PA 17055 (717) 697-8528 Attorney for Albert G. Filoreto _ BY THE COURT: Date: By Seal of the Court (Pro notary) r? CJ crw te,-- :. Serratelli, Schiffman, Brown & Calhoon, P.C. Paige Macdonald-Matthes, Esquire Attorney I.D. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Email: PMacdonald-Matthes(kssbc-law. com Attorneys for Defendant ALBERT FILORETO Plaintiff V. KRISTY BURKHOLDER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 2007-1227 CIVIL TERM CIVIL ACTION - IN LAW MOTION TO WITHDRAW AS COUNSEL AND NOW, this 8th day of July, 2009, comes Paige Macdonald-Matthes Esquire, and Serratelli, Schiffman, Brown & Calhoon, P. C, attorneys for the Defendant, in the above- captioned action, and request permission from this Honorable Court to withdraw as Counsel for the following reasons: 1. Petitioners, Paige Macdonald-Matthes, Esquire and Serratelli, Schiffman, Brown & Calhoon, P. C., (hereinafter collectively "Petitioner") are currently counsel of record for the Defendant/Respondent, Kristy Burkholder in the above-captioned matter. 2. Respondent, is an adult individual currently residing at 709 Shaffer Street, Enola, Cumberland County, Pennsylvania Petitioner was retained by Respondent to represent her in the above-captioned matter. 4. Petitioner has undertaken such representation but is now unable to continue to do so for the following reasons: a. Respondent has failed to reasonably reply to Petitioner's recent email communications and Respondent has likewise failed to reasonable reply to Petitioner's recent written communications; b. In light of Respondent's general failure to effectively communicate with Petitioner, there has been a general failure of communication between Petitioner and Respondent so that Petitioner's ability to represent Respondent has been rendered unreasonably difficult; C. Respondent has failed to substantially fulfill her obligations to Petitioner regarding their services and she has been given more than adequate warning, both written and oral, that Petitioner would withdraw unless those obligations were fulfilled; and d. Other good cause for withdrawal exists. 5. Withdrawal is allowed under Rule 1.16(b) of the Rules of Professional Conduct. 6. The above captioned matter is still in the discovery phase. Thus, permitting the undersigned counsel to withdraw at this time would neither unduly prejudice nor have a materially adverse affect on Respondent's interests and would allow Respondent sufficient time to obtain alternative counsel to proceed on her behalf in this matter. 7. This matter has not been assigned to any judge. 8. The undersigned counsel has contacted Plaintiff's counsel, Keith O. Brenneman, Esquire and as on July 8, 2009, provided him with a copy of the within Motion. Plaintiff s counsel has advised the undersigned counsel that he does not oppose the within Motion. An advance copy of the within Motion was also provided to Respondent on July 6, 2009- two (2) days prior to filing the same with this Honorable Court. WHEREFORE, Petitioners respectfully requests Your Honorable Court to enter an order permitting Petitioners, Paige Macdonald-Matthes, Esquire and Serratelli, Schiff nan, Brown & Calhoon, P. C., to withdraw as counsel of record for Defendant/Respondent in the above-captioned matter. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: July 8, 2009 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, counsel for the Defendant/Respondent in the above captioned matter, certify that on this 8t' day of July, 2009 served a copy of the foregoing Motion to Withdraw as Counsel upon the person(s) indicated below via U.S. First Class Mail upon the following: Kristy Burkholder 709 Shaffer Street Enola, PA 17025 Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 Paige M cdonald-Matthes, Esquire OF TH" 2Ol 09 SQL -3 Fri 112: 23 JUL 1 0 2009 4? ALBERT FILORETO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOCKET NO.: 2007-1227 CIVIL TERM V. CIVIL ACTION - IN LAW KRISTY BURKHOLDER . Defendant ORDER N1 AND NOW, this day of July, 2009, upon consideration of Petitioners', Serratelli, Schiffman, Brown & Calhoon, P.C. and Paige Macdonald-Matthes, Esquire unopposed Motion to withdraw as counsel for the Defendant/Respondent in the above captioned matter, it is hereby ORDERED that said Motion to Withdraw is GRANTED. By The Court: ?rth O. Brenneman, Esquire, 44 West Main Street, Mechanicsburg, PA 17055 "'aige Macdonald-Matthes, Esquire, Serratelli, Schiffman, Brown & Calhoon, P.C., 2080 Li glestown Road, Suite 201, Harrisburg, PA 17110 risty Burkholder, 709 Shaffer Street, Enola, PA 17025 4 s ALED-O -IvE: OF TIE PIR(DTHION ARY 2004 JUL 22 PM 3: 4 4 ,.111h. PE I+w 3'(LVAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALBERT FILORETO, Plaintiff V. NO.: 2007-1227 CIVIL TERM KRISTY BURKHOLDER, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant, Kristy Burkholder, in connection with the above captioned matter. S71 S & HOHENADEL, LLP DATE: Grab, Es 987 Street PA 1 512 422 .a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALBERT FILORETO, Plaintiff vs. KRISTY BURKHOLDER Defendant NO.: 2007-1227 CIVIL TERM CERTIFICATE OF SERVICE I, MICHAEL S. GRAB, ESQUIRE, do hereby certify that I have this day, served a true and correct copy of the foregoing document, upon the following person(s) and in the following manner, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. SERVICE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 S & HOHENADEL, LLP p? DATE: O v 53i2 t , s et 17512 (717) 6 1009 AUG -7 ra 1. 10 .0 AV ALBERT FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007-1227 CIVIL TERM : CIVIL ACTION -LAW MOTION TO COMPEL DEPOSITION Plaintiff Albert Filoreto, by his attorneys, Snelbaker & Brenneman, P. C., submits this Motion to Compel Deposition of Defendant Kristy Burkholder and in support thereof, states the following: 1. This case was initiated by a Complaint filed March 6, 2007 by Plaintiff Albert G. 2. After engaging in discovery through the issuance of subpoenas for records and a for production of documents directed to Defendant, Plaintiffs counsel by letter dated ebruary 23, 2009 requested dates from Defendant's then counsel, Paige Macdonald-Matthes, when her client would be available for her deposition to be taken. 3. After several attempts to schedule Plaintiffs deposition with no cooperation from on July 2, 2009 Plaintiff served a Notice of Deposition to take Defendant's deposition July 23, 2009. 4. On July 8, 2009 Defendant's then attorney, Paige Macdonald-Matthes, Esquire, filed a to Withdraw as Counsel for Defendant. 5. On July 20, 2009 this Court issued an Order granting Paige Macdonald-Matthes, leave to withdraw as attorney for Defendant Kristy Burkholder in the above case. LAW OFFICES SNELBAKER & BRENNEMAN. P.C. 6. On or after August 5, 2009, Michael S. Grab, Esquire entered his appearance for Kristy Burkholder in the above case. 7. By letter dated August 5, 2009 Attorney Grab advised that until his client had a consultation with bankruptcy counsel that he and his client would not be proceeding with the scheduling of her deposition in this case. A true and correct copy of the letter dated August 5, 2009 from Attorney Michael S. Grab to Plaintiffs attorney is attached hereto and incorporated by reference herein as "Exhibit A". 8. On September 2, October 21, and November 4, 2009 Plaintiffs attorney corresponded with Defendant's attorney inquiring of the status of his client's potential bankruptcy and asking for dates when his client would be available for her deposition to be taken. The aforementioned letters dated September 2, October 21 and November 4, 2009 are attached hereto and incorporated by reference as Exhibits B, C, and D. 9. Defendant has neither filed for bankruptcy nor has she cooperated in the scheduling of her deposition although it has been over three months since the time Defendant's attorney advised Plaintiffs counsel that Defendant would not be proceeding with her deposition due to Defendant's potential bankruptcy. 10. As of the preparation of this Motion, Defendant has not filed for bankruptcy nor has Defendant's attorney cooperated in the scheduling of Defendant's deposition. 11. It is believed and therefore averred that Defendant is delaying the prosecution of this case by Plaintiff by failing to submit to a deposition. 12. Defendant's attorney does not consent to the relief being requested in this Motion. 13. The Honorable M. L. Ebert has previously ruled in this case with respect to the Motion to Withdraw as Counsel filed by Paige Macdonald-Matthes, Esquire. LAW OFFICES SNELSAKER & BRENNEMAN, P.C. 2 WEREFORE, Plaintiff requests this Court to issue an Order compelling Defendant to to a deposition at the offices of Snelbaker & Brenneman, P. C. within thirty days of the of the Order. SNELBAKER & BRENNEMAN, P. C. By. l / /O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert Filoreto November 16, 2009 LAW OFFICES SNELBAKER & BRENNEMAN. P.C. VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section relating to unsworn falsification to authorities. Keith O. Brenneman November 16, 2009 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. NIKOLAUS & HOHENADEL, LLP ATTORNEYS AT LAW DONALD H. NIKOLAUS JOHN P. HOHENADEL MATTHEW J. CREME, JR. JOHN F. MARKEL PAULA D. MUNSON RICHARD G. GREINER JEFFREY A. MILLS MK24AEL B. GRAB MKA4AEL A. VANASSE JOSEPH G. MUZIC, JR. LISA J. MCCOY BARBARA REIST DILLON 327 LOCUST STREET COLUMBIA, PA. 17512 717/884-4422 FAX 717/8848088 212 NORTH QUEEN STREET LANCASTER, PA. 17803 717/2883728 FAX 71 7 /2881 Oil August 5, 2009 COUNSEL JOSEPH J. LOMBARDO ROGER S. REST JOHN C. HOHENADEL WANDA S. WHARF ROBERT S. CRONIN, JR. MANY LLOYD HEINZ ANGEL E. TORRES Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 RE: FILORETO VS. BURKHOLDER CCCP NO.: 2007-1227 Dear Mr. Brenneman: Please be advised that this office represents Kristy Burkholder in connection with the above captioned civil action. I have enclosed herewith an Entry of Appearance on behalf of our firm in connection with this matter, which we have sent for filing with the Prothonotary of Cumberland County. I have advised Ms. Burkholder to consult with bankruptcy counsel in connection with the above matter. A consultation is scheduled to occur sometime within the next several weeks. Until that consultation has been concluded, we will not be proceeding with the scheduling of a Deposition in this matter. If you have any questions, or wish to discuss this matter contact me. / truly yours, . MSG/lcn Enc. cc: Kristy Burkholder S. , please do not hesitate to EXHIBIT A SNELBAKER 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C. SNELBAKER KEITH O. BRENNEMAN Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 717-697-8528 September 2, 2009 Re: Filoreto v. Burkholder No. 2007-1227, Cumberland County Dear Michael: Please advise of the status of your client and her potential bankruptcy. Yours truly, Keith O. Brenneman KOB/sm cc: Al Filoreto EXHIBIT B P. O. BOX 318 FACSIMILE (717) 697.7681 SNELBAKER 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C. SNELBAKER KEITH O. BRENNEMAN Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 Re: Filoreto v. Burkholder Dear Michael: 717-697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 October 21, 2009 It has been over two months since I received notification of your representation of Kristy Burkholder and her intention to explore the possibility of filing for bankruptcy. I need to either move the case forward or receive confirmation that she has filed for bankruptcy. If I do not receive confirmation that she has filed for bankruptcy, I would like to schedule her deposition. Please advise if you will be cooperating in that regard. Yours truly, Keith O. Brenneman KOB/sm cc: Al Filoreto EXHIBIT C SNELBAKER 8 BRENNF-mAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C. SNELBAKER KEITH O. BRENNEMAN Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 Re: Filoreto v. Burkholder Dear Michael: 717-697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 November 4, 2009 Please provide me with dates when your client will be available to have her deposition taken at my office. If I do not hear from you within the next seven days, I will be filing an appropriate motion with the Court for purposes of compelling the scheduling of her deposition. Unless I hear from you otherwise, I will certify in the motion that you do not consent to that relief being requested by me. I thank you for your attention to this matter. Yours truly, Keith O. Brenneman KOB/sm cc: Al Filoreto EXHIBIT D CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Motion to Compel Deposition to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 SNELBAKER & BRENNEMAN, P.C. By: 1 Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 Attorneys for Plaintiff Date: November 16, 2009 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. i ILr_D --D lY{V i.. r 'CRY 2C, 99 NOY 16 pH 12: LAW OFFICES SNELBAKER & BRENNEMAN, P.C. Nov 17 200 ALBERT FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-1227 CIVIL TERM CIVIL ACTION -LAW ORDER AND NOW, this I Q* day of N o•iLW, tr , 2009, upon consideration of the Motion to Compel Deposition filed by Plaintiff, it is hereby ORDERED that Defendant Kristy Burkholder shall submit to a deposition at the offices of Snelbaker & Brenneman, P. C. within thirty days of the date of the service of this Order upon Defendant's counsel. BY THE COURT: ,kk -? ?a, \, V___ J. OF TNPR r c a1"RRY 2009 NOY 19 Pit 3; 33 ALBERT FILORETO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2007-1227 CIVIL TERM KRISTY BURKHOLDER, CIVIL ACTION -LAW Defendant MOTION FOR SANCTIONS Plaintiff Albert Filoreto, by his attorneys, Snelbaker & Brenneman, P. C. submits this Motion For Sanctions and in support thereof states the following: 1. Since February 23, 2009 Plaintiff has attempted to schedule and take the deposition of Defendant Kristy Burkholder in this case. 2. After Defendant's first attorney in this case withdrew her appearance with leave of I court, Attorney Michael S. Grab entered his appearance for the Defendant on or about August 5, 12009. 3. Since the entry of Attorney Grab's appearance in this case, Defendant has not I cooperated in the scheduling of her deposition. 4. On November 16, 2009 Plaintiff filed a Motion to Compel Deposition, seeking an I order to compel Defendant to submit to a deposition at the offices of Plaintiffs attorneys. 5. On November 19, 2009 this Court entered an Order compelling Defendant Kristy Burkholder to submit to a deposition at the offices of Snelbaker & Brenneman, P. C. within thirty days of the date of the service of the Order upon Defendant's counsel. A true and correct copy of the aforementioned Order of November 19, 2009 is attached hereto and incorporated by reference herein as "Exhibit A". LAW OFFICES SNELSAKER & BRENNEMAN, P.C. 6. On November 23, 2009 Plaintiffs attorney served upon Attorney Michael S. Grab a conformed copy of the Court's Order of November 19, 2009 requesting to hear from Mr. Grab within seven days of November 23, 2009 concerning dates that his client would be available for her deposition. A true and correct copy of the letter of November 23, 2009 to Attorney Michael S. Grab is attached hereto and incorporated by reference herein as "Exhibit B". 7. Attorney Michael S. Grab did not respond to the letter of November 23, 2009. 8. Having not heard from Defendant's attorney within seven days of the letter of November 23, 2009, Plaintiffs counsel called Attorney Michael S. Grab to inquire as to the availability of the Defendant to be deposed. Plaintiffs attorney called Attorney Michael S. Grab on the following dates: December 1, 2009 December 2, 2009 December 4, 2009 (2 times) December 7, 2009 December 8, 2009 Michael S. Grab failed to respond to any of the phone messages and voice mail messages at his office on the above dates and has refused to communicate with Plaintiffs counsel in scheduling of Defendant's deposition for purposes of complying with this Court's Order of ovember 19, 2009. 9. On December 8, 2009 Plaintiffs counsel sent to Attorney Michael S. Grab a Notice of sition scheduling the deposition of Defendant to take place at 9:00 a.m on Thursday, 17, 2009. Copies of the letter transmitting the Notice of Deposition by both telefax LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 2 and first class mail as well as the Notice of Deposition are attached hereto and incorporated by reference herein as "Exhibit C" and "Exhibit D". 10. Plaintiffs counsel had no response from Attorney Michael S. Grab after serving the Notice of Deposition on December 8, 2009. 11. On December 16, 2009 Plaintiffs counsel called Attorney Michael S. Grab two times in the morning and one time in the afternoon leaving messages for him to contact Plaintiffs I attorney concerning the deposition that was scheduled the next day on December 17, 2009. 12. Attorney Michael S. Grab failed to return any of the phone calls placed by Plaintiffs I attorney. Instead, Attorney Grab sent by telefax the afternoon prior to the deposition a letter advising Plaintiffs attorney that neither he nor Ms. Burkholder were available to attend the deposition on December 17, 2009 and that he had been "in the process of obtaining proposed deposition dates from Ms. Burkholder" for early to mid-January 2010. The foregoing letter dated December 16, 2009 from Defendant's attorney to Plaintiffs attorney is attached hereto and incorporated by reference herein as "Exhibit E". 13. Defendant has failed and refused to submit to a deposition in accordance with the Court's Order of November 19, 2009 after being given notice and ample opportunity to do so. 14. Defendant has willfully violated this Court's Order of November 19, 2009 for purposes of delaying her deposition. 15. Defendant's attorney has consistently and habitually failed and refused to communicate with Plaintiffs counsel. 16. Based upon the statements made by Defendant's attorney December 16, 2009 (Exhibit E hereto), it is believed that Defendant's attorney does not consent to the relief requested LAW OFFICES SNELBAKER & BRENNEMAN, P.G. 3 in this Motion. 17. Judge Ebert, Jr. issued the Order of November 19, 2009 compelling Defendant to submit to a deposition at the office of Plaintiffs attorneys. WHEREFORE, Plaintiff requests this Court to issue an Order: A. Ordering and directing Defendant to submit to a deposition at the offices of Snelbaker & Brenneman, P. C. on January 14, 2010 at 9:00 a.m.; B. Directing Defendant to pay attorney's fees and costs incurred by Plaintiff in filing the Motion to Compel and this Motion For Sanctions; C. Directing Defendant to file a response to the averments stated in this Motion and to show cause why the relief requested in this Motion should not be granted; and D. Granting Plaintiff such further and other relief as this Court shall deem appropriate under the circumstances. SNELBAKER & BRENNEMAN, P. C. By: Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert Filoreto Date: December 17, 2009 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 4 VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 904 relating to unsworn falsification to authorities. fh'----? Keith O. Brenneman : December 17, 2009 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. NOV .E 12009 a ALBERT FILORETO, Plaintiff V. I KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-1227 CIVIL TERM CIVIL ACTION - LAW ORDER AND NOW, this 19+x, day of Coxvil-".n, 2009, upon consideration of the Motion to Compel Deposition filed by Plaintiff, it is hereby ORDERED that Defendant Kristy Burkholder shall submit to a deposition at the offices of Snelbaker & Brenneman, P. C. within thirty days of the date of the service of this Order upon Defendant's counsel. BY THE COURT: EXHIBIT A LAW OFFICES SNELBAKER & BRENNEMAN, P.C. SNELB2KER 8 BRENNEMAN, P.C. A PROFESSIONAL COKPOP.ATI O N ATTORNEYS AT LAW RICHARD C. SNELBAKER KEITH O. BRENNEMAN 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 717-697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 November 23, 2009 Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 Re: Filoreto v. Burkholder No. 2007-1227, C.C.P., Cumberland County Dear Mr. Grab: Enclosed please find a conformed copy of an Order issued by Judge Ebert ordering your client to submit to a deposition at my office within thirty days of the date of service of this Order upon you. Please let me hear from you within the next seven days concerning your client's availability or I will schedule the deposition at my convenience. Yours truly, Keith O. Brenneman KOB/sm Enclosure cc: Albert Filoreto (w/enclosure) EXHIBIT B SNELBAKER & BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW RICHARD C. SNELBAKER KEITH O. BRENNEMAN 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 717.697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 December 8, 2009 Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 Re: Filoreto v. Burkholder No. 2007-1227 C.C.P., Cumberland County Dear Mr. Grab: VIA TELEFAX AND FIRST CLASS MAIL On November 23, 2009 I wrote to you requesting dates when your client will be available to schedule her deposition. Between December 1 and December 8, 2009 I called and left messages six times at your office to speak to you concerning your and your client's availability for a deposition. For some reason you have not seen fit to favor me with the courtesy of even a response. Enclosed is a Notice of Deposition scheduling the deposition of your client at my office for 9:00 a.m. on Thursday, December 17, 2009. Please be guided accordingly, Yours truly, Keith O. Brenneman KOB/sm Enclosure cc: Albert Filoreto (w/enclosure) EXHIBIT C ZT FILORETO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007-1227 CIVIL TERM TY BURKHOLDER, Defendant CIVIL ACTION -LAW NOTICE OF DEPOSITION TO: Kristy Burkholder, Defendant and Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. PLEASE TAKE NOTICE that on Thursday, December 17, 2009, commencing at 9:00 a.m. and continuing from day to day as necessary, before an individual authorized to administer oaths, Plaintiff in the above action will take the deposition of Kristy Burkholder pursuant to Pa.R.C.P. 4007. 1, upon examination at the offices of Snelbaker & Brenneman, P. C., 44 West Main Street, Mechanicsburg, Pennsylvania, for the purposes of discovery and/or use at trial in the above action. Date: December 8, 2009 SNELBAKER & BRENNEMAN, P. C. BY: &eith U. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert Filoreto EXHIBIT D CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Notice of Deposition to be served upon the person and in the manners indicated below: TELEFAX TO (717) 684-6099 AND FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 Keith O. Brenneman, Esquire SNELBAKER & BRENNEMAN, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Albert Filoreto Date: December 8, 2009 LAW OFFICES SNELSAKER & BRENNEMAN, P.C. Dec-16-09 02:50P Nikolaus & Hohenadel 717 684 6099 P.02 NIKOLAUS & HOHENADEL, LLP ATTORNEYS AT LAW DONALD H. NNCOI A' JR 327 LOCUST STREET JOHN P. HOFENADEL COLUMBIA, PA. 17512 COUNNEL JOSEH J. LOMBARDO MATTHEW J. CREME. JR. ROM S. REFIT JOHN F. MARKEL PAULA D. MLNJBON 717/8644422 RICHARD G. GRIE"A FAX 717/6844MOO JEFFREY A. MILLS MR24Aa S. GRAS 218 NORTH GRJEEN 679 MICHAEL A. VANABSE . PA. M LANCA876i RA. 17803 JOSEPH G. MUZIC. JR. LISA J. MoDDY FAX X 717/286.18 717/2MI0 11 BARBARA REST DILLON December 16 2009 , BEFWADErrE M. HOHENADEL ANTHONY MARL HOWNS JOHN C. HOHENAOEL WANDA B. WHOM ROBIRT S. CRONIN,JR. MANDY LLOYD MNZ ANGH. E. TDRiEB VIA FACSIMILE 697-7681 AND FIRST CLASS MAIL Keith O. Brenneman, Esquire SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055 R1.: FILORETO V. BURKHOLDER NO. 2007-1227, C.C.P., CUMBERLAND COUNTY PROPOSED DEPOSITION Dear Keith: Thank you for your recent phone messages and Notice of Deposition in connection with the above matter. Unfortunately, neither 1, nor Ms. Burkholder are available to attend the deposition on December 17, 2009, I have been in the process of obtaining proposed deposition dates from Ms. Burkholder for early to mid January 2010. I was waiting to obtain those dates to telephone you to discuss this issue. I expect to have the available dates provided to me by Ms. Burkholder sometime late today or tomorrow. When I provide you with the available dates, you can confirm which dates work for you and your client. While I understand that rescheduling this matter until sometime in early to mid January 2010 represents a delay, I assume that you will have no strenuous objection based upon the intervening holiday and overall short duration of the delay. Thank you for your consideration. MSG/lcn cc; Kristy Burkholder EXHIBIT E CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, a true and correct copy of the foregoing Motion to be served upon the person and in the indicated below: FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Michael S. Grab, Esquire Nikolaus & Hohenadel, LLP 327 Locust Street Columbia, PA 17512 SNELBAKER & BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717)697-8528 Attorneys for Plaintiff Albert Filoreto )ate: December 17, 2009 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 2009 OEC 17 VA I. 01 rC dl''a ; DEC 18 2009 j ALBERT FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-1227 CIVIL TERM CIVIL ACTION -LAW ORDER AND NOW, this S? day of OeLe*? t4 , 2009 upon consideration of Plaintiffs Motion For Sanctions, it is hereby ORDERED that Defendant Kristy Burkholder shall submit to a deposition at the offices of Snelbaker & Brenneman, P. C. on January 14, 2010 at 9:00 a.m. It is further ORDERED that Defendant shall respond to the statements set forth in the Motion For Sanctions and show cause, if any she should have, why the relief requested in the Motion For Sanctions should not be granted within twenty (20) days of the date of service of this Order upon Defendant's counsel. BY THE COURT: LAW OFFICES SNELBAKER & BRENNEMAN, P.C. j r :+r t .ham THr YA"'i?,!.TlT,f,i,{. 1?1 2409 DEC 21 AM 10: 22 PENNS`r'CW, ;"'l i??at?t34 - 1€s c 16r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYCEVAMA .?-, CIVIL ACTION - LAW z - 'l Fn r ALBERT FILORETO, %.: 79 71 ? Y Plaintiff r v. NO. 2007-1227 CIVIL TERM`„ f _= c3 ?5'T KRISTY BURKHOLDER, Defendant RESPONSE OF DEFENDANT TO MOTION FOR SANCTIONS Defendant Kristy Burkholder, by her attorneys, Michael S. Grab, Esquire and Nikolaus & Hohenadel, LLP, submits the following Response to Motion for Sanctions and in support thereof states the following: 1. Denied. The current counsel for Defendant Kristy Burkholder entered an appearance in this matter on August 7, 2009. 2. Admitted. 3. Denied. On the contrary, immediately after entering appearance on behalf of the Defendant, counsel for Defendant advised counsel for Plaintiff, via letter dated August 5, 2009, that the Defendant would be consulting with bankruptcy counsel due to the likelihood of a Chapter 7 bankruptcy filing. A true and correct copy of the correspondence is attached hereto and incorporated herein as Exhibit "A". By way of further answer, the Defendant, Kristy Burkholder, is without adequate financial resources to aggressively assert the defenses raised in connection with this civil action. As a result of this lack of resources, Ms. Burkholder's first counsel of record was forced to withdraw their appearance, and Ms. Burkholder was forced to consult with bankruptcy counsel with regard to the probability of proceeding with a bankruptcy filing. While the bankruptcy filing has not yet occurred, it is anticipated that a filing will, at some point in the near future, become unavoidable , due in no small part to the above pending action. Under the circumstances, the Defendant submits that imposing sanctions on the Defendant, in addition to the hardship already visited upon the Defendant as a result of this action, would be inequitable, for reasons which include, but are not limited to, the following: A. The above pending civil action stems from a failed romantic relationship between the Plaintiff and Defendant; and B. Defendant believes that Plaintiff has filed the pending action as a vexatious and punitive measure against Defendant, in order to inflict a financial burden upon Defendant, which Plaintiff is well aware Defendant has no ability to bear; and C. The allegations in Plaintiff's Complaint are wholly without merit, as asserted in Defendant's Responsive Pleadings filed to date; and D. Defendant has already responded to documentary discovery, and provided adequate information to Plaintiff in order to allow this matter to proceed to a hearing, and that Plaintiff's insistence on scheduling Defendant's deposition, constitutes a misuse of the Rules of Discovery for the sole and express purpose of allowing the Plaintiff to exact revenge upon the Defendant for the failed relationship. 4. Admitted. Admitted. 6. Admitted. 7. Denied as stated. Counsel for Defendant contacted Defendant to advise the Defendant of the status of the deposition request and to confirm the status of the bankruptcy consultation. It is admitted that counsel for Defendant did not provide a specific written response to Plaintiff s counsel at that time, but did provide a response thereafter. -2- 8. Denied. Defendant is without sufficient knowledge or information to confirm the various alleged dates on which Plaintiff's counsel asserts Plaintiff attempted to contact Defendant's counsel. By way of further answer, a generalized "telephone call" does not constitute adequate notice of a proposed deposition date. In addition, counsel for Defendant replied to the inquiries of Plaintiff's counsel via correspondence dated December 16, 2009, a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit "B". 9. Admitted. 10. Denied. As noted above, counsel for Defendant responded, in writing, to the Notice of Deposition via correspondence dated December 16, 2009, a copy of which is attached hereto as Exhibit "B". 11. Admitted in part and denied in part. It is admitted that a telephone call was placed from the office of Plaintiff's counsel to Defendant's counsel on December 16, 2009; however, a written response was provided that same day, via facsimile to Plaintiff's counsel, and is attached hereto and incorporated herein as Exhibit "B". 12. Denied as stated. Plaintiff's counsel attempts to characterize the written response provided by Defendant's counsel as somehow constituting a "lack of response". On the contrary, the response provided by Defendant's counsel was made, in writing and via facsimile, and provided a range of dates for the scheduling of a deposition in this matter for some time in early to mid January 2010. 13. Denied. It is denied that Defendant has failed or refused to submit to a deposition in accordance with the Court Order of November 19, 2009. On the contrary, counsel for Plaintiff was advised of a range of dates in early to mid January 2010, on which the deposition could be scheduled. Moreover, as noted above, the pendency of a Chapter 7 -3- bankruptcy filing by the Defendant remained uncertain at the time that Plaintiff proposed to schedule Defendant's deposition. 14. Denied. It is denied that Defendant has wilfully violated the Court Order of November 19, 2009 for purposes of delaying her deposition. On the contrary, as set forth above, Defendant is without adequate financial resources to defend this action, which has been filed by Plaintiff purely for vexatious and punitive reasons, as a result of the parties' failed romantic relationship. 15. Denied. Counsel for Defendant initiated contact with counsel for Plaintiff, advised counsel for Plaintiff of Defendant's consultation with bankruptcy counsel and likely bankruptcy filing, and responded to Defendant's demand for scheduling of a deposition by proposing dates in early to mid January 2010. 16. Admitted. It is agreed that counsel for Defendant does not consent to the relief requested in Plaintiff's Motion. 17. Admitted. In addition, the Defendant response to the Plaintiff s prayer for relief as set forth in the Motion, is as follows: A. A deposition has been scheduled for the Defendant at the offices of Snelbaker & Brenneman, P.C., on January 14, 2010 @ 9:00 A.M., at which time the Defendant will appear; and B. Denied. There is no basis to require the Defendant to pay attorney's fees and costs incurred by Plaintiff in the filing of the Motion to Compel a Motion for Sanctions. Counsel for Defendant entered an appearance in this matter in August 2009, immediately notified Plaintiff s counsel of Defendant's consultation with bankruptcy counsel and the likelihood of a Chapter 7 bankruptcy filing, and the Motion to Compel filed by Plaintiff was without adequate basis and premature; and -4- C. Defendant has filed the Response as set forth above; and D. No responsive pleading is required. WHEREFORE, Defendant respectfully requests that this Honorable Court deny the relief requested in Plaintiff's Motion for Sanctions, in consideration of the foregoing factors, and in consideration of the fact that a deposition has been scheduled for January 14, 2010, which falls within the range of dates proposed by Defendant's counsel in correspondence to Plaintiff's counsel dated December 16, 2009. Respectfully submit , NIKOLAUS OHENADEL, LLP DATE: By MiLoia, S. Grab, Esc I.5987 3st Street PA 1 751 1 (717) 684-4422 -5- DONALD H. NIKOLAUS JOHN P. HOHENADEL MATTHEW J. CREME, JR. JOHN F. MARKEL PAULA D. MUNSON RICHARD G. GREINER JEFFREY A. MILLS MICHAEL S. GRAB MICHAEL A. VANASSE JOSEPH G. MUZIC, JR. USA J. MCCOY BARBARA REIST DILLON BERNADETTE M.HOHENADEL ANTHONY MARC HOPKINS JOHN C. HOHENADEL WANDA S. WHARE ROBERT S. CRONIN, JR. MANDY LLOYD HEINZ ANGEL E. TORRES Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 RE: FILORETO VS. BURKHOLDER CCCP NO.: 2007-1227 Dear Mr. Brenneman: August 5, 2009 Please be advised that this office represents Kristy Burkholder in connection with the above captioned civil action. I have enclosed herewith an Entry of Appearance on behalf of our firm in connection with this matter, which we have sent for filing with the Prothonotary of Cumberland County. I have advised Ms. Burkholder to consult with bankruptcy counsel in connection with the above matter. A consultation is scheduled to occur sometime within the next several weeks. Until that consultation has been concluded, we will not be proceeding with the scheduling of a Deposition in this matter. If you have any questions, or wish to discuss this matter further, please do not hesitate to contact me. Very truly yours, MSG/lcn Enc. cc: Kristy Burkholder Michael S. Grab EXHIBIT "A" NIKOLAUS & HOHENADEL, LLP ATTORNEYS AT LAW 327 LOCUST STREET COUNSEL COLUMBIA, PA. 17512 JOSEPH J. LOMBARDO ROGER S. REIST 717/684-4422 FAX 717/684-6099 212 NORTH QUEEN STREET LANCASTER, PA. 17603 717/299-3726 FAX 717/299-1811 6 NIKOLAUS & HOHENADEL, LLP ATTORNEYS AT LAW DONALD H. NIKOLAl 327 LOCUST STREET COUNSEL JOHN P. HOHENADEL COLUMBIA, PA. 17512 JOSEPH J. LOMSARDO MATTHEW J. CREME, JR. ROGER S. REIST JOHN F. MARKEL PAULA D. MUNWN 717/584-,4422 RICHARD G. GREINER FAX 717/BS"089 JEFFREY A. MILLS 212 NORTH GKJEEN STREET MICHAEL S. WAS LANCASTER. PA. 17503 MICHAEL A. VANASSE 717/20B-3725 JOSEPH G. MUZIC, JR. FAX 717/'288-181 1 LISA J. MoDDY BARBARA REIST DILLON December 16, 2009 BERNADE[TE M. HOHENADEL ANTHONY MARC HOPKINS JOHN C. HDHENADEL WANDA S. WHARF ROBERT S. CRONIN, JR. MANDY LLOYD HEINZ ANGEL E. TORRES VIA FACSIMILE 697-7681 AND FIRST CLASS MAIL Keith 0. Brenneman, Esquire SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055 RF: FILORETO V. BURKHOLDER NO. 2007-1227, C.C.P., CUMBERLAND COUNTY PROPOSED DEPOSITION Dear Keith: Thank you for your recent phone messages and Notice of Deposition in connection with the above matter. Unfortunately, neither I, nor Ms. Burkholder are available to attend the deposition on December 17, 2009. I have been in the process of obtaining proposed deposition dates from Ms. Burkholder for early to mid January 2010. 1 was waiting to obtain those dates to telephone you to discuss this issue. I expect to have the available dates provided to me by Ms. Burkholder sometime late today or tomorrow, When I provide you with the available dates, you can confirm which dates work for you and your client. While I understand that rescheduling this matter until sometime in early to mid January 2010 represents a delay, I assume that you will have no strenuous objection based upon the intervening holiday and overall short duration of the delay. Thank you for your consideration. MSG/l cn cc: Kristy Burkholder EXHIBIT "B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALBERT FILORETO, Plaintiff V. KRISTY BURKHOLDER, Defendant: NO. 2007-1227 CIVIL TERM CERTIFICATE OF SERVICE I, MICHAEL S. GRAB, ESQUIRE, do hereby certify that I have this day, served a true and correct copy of the foregoing document, upon the following person(s) and in the following manner, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. SERVICE BY FACSIMILE AND FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 DATE: l °Z ?a By/ NIKOLAUS I. D. No. 327 Loci (71 A'HOHENADEL, LLP S. Grab, Esgi 55987 ?st Street a, PA 1 512 1-4422 S C rr ALBERT G. FILORETO, IN THE COURT OF COMMON P 'F ;' -' CUMBERLAND COUNTY, PENNSYLyA+NIA -C--Tr_-. Plaintiff t rn V. NO. 2007-1227 _T? =r' KRISTY BURKHOLDER, r•;, C? 'J3 Defendant - kc :< RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Keith 0. Brenneman counsel for the plaintiff/d@@ft in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 13,241.54 The counterclaim of the defendant in the action is $54,756.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Richard C. Snelbaker, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Date: May 6, 2010 1 Keith 0. Brenneman ORDER OF COURT AND NOW, , 200 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, not, A 6?P a sSs ALBERT G. FILORETO IN THE COURT OF COMMON PF 9w _' , CUMBERLAND COUNTY, PENNSYL'VA'NIA ?_ Plaintiff V. NO. 2007-1227 KRISTY BURKHOLDER, _ Defendant RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Keith 0. Brenneman , counsel for the plaintiff/dow in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 13, 241.54 The counterclaim of the defendant in the action is $54,756.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Richard C. Snelbaker, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Date: May 6, 2010 ORDER OF COURT ' /I It/ Keith 0. Brenneman AND NOW, 2066 , in consideration of the foregoing petition, AZZ Esq., and -?? O'. Es and 0 r Esq., LEi?., are appointed arbitrators in the above captioned ction (or actions) as yed for. AN I I 00 By the Court, £ s1 lid i 1 AVW 1I8Z c es rn? t , Plaintiff kr?????r? 1?1 dQr Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No.2&7- ZZ Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. P ignature Sign ure iU A Name (Chairman) Name Name R? 6k p Law Firm Law Firm low a1? tY?C1rV4 sk '513? s h .?i?crc 7C Address Address .r, dissents. (Insert name if applicable.) (^ tl ,Ply 1"1 Dl( ?,-/s4 / .3 Gy ll,?I 64 170 City, Zip City, Zip City, Zip Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damaes for delay are awarded, thlll be separately stated.) It_ . Arbi Date of Hearing: I p 161 10 Date of Award: 10 Notice of Entry of Award Iyl? ? ?f'?Lt??!$ Law Firm 3% Sk. I has 94, S?. l a Address (Chairman) Now, the day of , 20__(? at // . ?,/ .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation tobe,paid upon appeal: $ 3S[? , py By: Prothonotary Deputy 1= IL O-OFF IC? OF THE IPPOTHO OTAI? 201 O CCT -1 AM 11: 2 4 C UMBERLANID COUNT PEN14SYLNIAN'I ,. /10/11/10- ?o DES' .,Lc nil. _ " t R4?,j K. 5 I t { IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALBERT G. FILORETO, Plaintiff VS. NO.: 2007-1227 KRISTY BURKHOLDER, Defendant NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that the Defendant, Kristy Burkholder, appeals from the award of the Board of Arbitrators entered in this case on October 7, 2010. A jury trial is waived. I hereby certify that the compensation of the Arbitrators has been paid. NIKOLAUS & NADEL, LLP DATE: By, Micha 1 S. Grab,, Es tt?e Attorne for Kristy Bu Ider I.D. No.: 55987 3 1 Street Columbia, PA 1751 (717) 684-4422 *Wo . uo PA lkill IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALBERT G. FILORETO, VS. KRISTY BURKHOLDER, Plaintiff Defendant NO.: 2007-1227 CERTIFICATE OF SERVICE I, MICHAEL S. GRAB, ESQUIRE, do hereby certify that I have this day, served a true and correct copy of the foregoing document, upon the following person(s) and in the following manner, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. SERVICE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Keith 0. Brenneman, Esquire SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055 DATE:` NIKOLAUS & H By: I. D. N&,55987 327 Locu t Street Columbia, TA 175 17.1716544422 ADEL, LLP 1 C?- ? 7?- PRAECIPE FOR LISTING CASE FOR TRIAL c (Must be typewritten and submitted in triplicate) -0z cs ---t tx? TO THE PROTHONOTARY OF CUMBERLAND COUNTY V- ?rn Please list the following case: ?a i p ? for JURY trial at the next term of civil court p . X? for trial without a jury. 1 C-y A S p? ---------------------------------------------------------------------------------------------------------0"1= cb cz) C) ? CAPTION OF CASE •• ? (entire caption must be stated in full) (check one) ? Civil Action - Law S ALBERT G. ?X Appeal from arbitration FILORETO, ? (other) (Plaintiff) VS. The trial list will be called on KRISTY and January 4, 2011 BURKHOLDER, Trials commence on January 31, 2011 (Defendant) Pretrials will be held on January 19, 2011 VS. (Briefs are due S days before pretrials No. 2007-1227 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Keith O. Brenneman Indicate trial counsel for other parties if known: Michael S. Grab This case is ready for trial. Signed: 1 Print Name: Keith O. Brenneman Date: 6Cec &*?t 6, o-vl G Attorney for: Plaintiff y Is-, O V P,C u.#J X735- ? eft- ?..5 3 L'D l ALBERT G. FILORETO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KRISTY BURKHOLDER, Defendant NO. 07-1227 CIVIL TERM ORDER OF COURT AND NOW, this I Oh day of December, 2010, a pretrial conference in the above matter is scheduled for Thursday March 10, 2011, at 11:00 a.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Monday, April 18, 2011, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Keith O. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Plaintiff chael S. Grab, Esq. 327 Locust Street Columbia, PA 17512 Attorney for Defendant BY THE COURT, J. Court Administrator :rc Cof Cog e-n ?3 ( Lk /;L/ to /to ?:Tr'1 l) N C O C= i. 2 r- r?- C:) ? _ C:) -'J z ? C-- o -? cn L9 ALBERT G. FILORETO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KRISTY BURKHOLDER, Defendant NO. 07-1227 CIVIL TERM ORDER OF COURT AND NOW, this 10fl' doy of March, 2011, upon relation of Michael S. Grab, Esq., attorney for Defendant, that Defendant Kristy Burkholder has filed a bankruptcy action in the U.S. Bankruptcy Court for the Middle District of Pennsylvania, docketed to number 1:11-bk-01634, the pretrial conference scheduled for March 10, 2011, and the non jury trial scheduled for April 18, 20 1, are stayed. BY THE COURT, /Keith O. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-031 Attorney for Plaintiff Michael S. Grab, Esq. 327 Locust Street Columbia, PA 17512 Attorney for Defendant Court Administrator - in ?i le 1 i Vwesle?kWrjJr., J. ied :3 1 of 3 1 20 rQ C -c :rc DavieD, Bluff Prothonotary Off �ce o_ f the Trotiionotary Cum6er[ancfCounty, Pennsylvania 7 rkS. Sofionage, fESQ Solicitor ©/ — /022,7 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE—THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P,230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 e Car(isCe, PA 0 Phone 717 240-6195 0 Tac 717 240-6573