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HomeMy WebLinkAbout03-0256CHARLES B. HOLLENBACH, Pro Se 112 Sherby Lane Shermans Dale, PA 17090 (717) 582-7470 CHARLES B. HOLLENBACH 112 Sherby Lane Shermans Dale, PA 17090 And DIANNA L. HOLLENBACH 112 Sherby Lane Shermans Dale, PA 17090 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Civil Action No. 03- a 5-6 JURY TRIAL DEMANDED Action In Legal Malpractice V. MARCUS McKNIGHT, ESQUIRE Irwin, McKnight & Hughes 60 W. Pomfert Street Carlisle, PA 17013 And IRWIN, McKNIGHT & HUGHES 60 W. Pomfert Street Carlisle, PA 17013 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue summons in civil action in the above case and forward to Sheriff. dl ) 8. Charles B. Hollenbach, Pro Se Date: January 14, 2003 V W ?° ?? ?J C? _ J n l'- {;' -? -o -?-, ?--, ts- ?- v Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Charles B. Hollenbach and Dianna L. Hollenbach 112 Sherby Lane Shermans Dale PA 17090 Plaintiff Vs. Marcus McKnight, Esq Irwin, Mcknight & Hughes 60 W. Pomfert Street Carlisle PA 17013 AND Irwin, McKnight & Hughes 60 W. Pomfert Street Carlisle PA 17013 Defendant Court of Common Pleas No. 03-256 In CivilAction-Law e To Marcus McKnight, Esq. and Irwin, McKnight & Hughes You are hereby notified that Charles B. Hollenbach and Dianna L. Hollenbach the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) CURTIS R. LONG Prothonotary Date January 17, 2003 By Deputy Attorney: Name: Charles B. Hollenbach Address: 112 Sherby Lane Shermans Dale, PA 17090 Attorney for: Telephone: 717-582-7470 ?n 1 s'4:3R.k} v:. l1 -A to b ?? . - ddy prothonota CASE NO: 2003-00256 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOLLENBACH CHARLES B ET AL VS MCKNIGHT MARCUS ESQ ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS MCKNIGHT MARCUS E was served upon the DEFENDANT , at 0930:00 HOURS, on the 28th day of January , 2003 at 60 W POMFRET ST CARLISLE, PA 17013 by handing to KAM CORNMAN, REAL ESTATE ASST ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 nn So Answers: R. Thomas Kline 01/28/2003 CHARLES HOLLENBACH Sworn and Subscribed to before me this OJ ' day of By: /ep?u(y4e ' f SHERIFF'S RETURN - REGULAR CASE NO: 2003-00256 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOLLENBACH CHARLES B ET AL VS MCKNIGHT MARCUS ESQ ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS TRwTN. MCKNIGHT & HUGHES was served upon the DEFENDANT , at 0930:00 HOURS, on the 28th day of January , 2003 at 60 WEST POMFRET ST CARLISLE, PA 17013 by handing to KAM CORNMAN, REAL ESTATE ASST ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: ; R. Thomas Kline 01/28/2003 CHARLES HOLLENBACH Sworn and Subscribed to before m this day of DU3 A.D. n_ By: D p Ky he if CHARLES B. HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs V. MARCUS A. McKNIGHT, ESQ., and IRWIN, McKNIGHT & HUGHES, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2003-256 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendants, MARCUS A. McKNIGHT, ESQ., and IRWIN, McKNIGHT & HUGHES, in the above captioned case. Respectfully By: IRWIN, McK1,%f&HT & A-tvlcKnight,?Il squire Marcus A. cKnight, squire 60 West P fret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for defendants Date: May 13, 2003 CHARLES B. HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs V. MARCUS A. McKNIGHT, ESQ., and IRWIN, McKNIGHT & HUGHES, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2003-256 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Kevin William Gibson, Esq. GIBSON & PERKINS, P.C. 200 East State St., Ste. 105 Media, PA 19063 IRWIN, McIK)GHT & JVJGHES By: Marcus Zfret cKnig t,f ATMs 60 West Str Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: May 13, 2003 CJ ("' -77%``+ f _ -? J, ? ._.. ?? ? _„ ! CJ7 -:7 "? CHARLES B. HOLLENBACH, Pro Se 112 Sherby Lane Shermans Dale, PA 17090 (717) 582-7470 CHARLESB.HOLLENBACH 112 Sherby Lane Shermans Dale, PA 17090 And DIANNA L. HOLLENBACH 112 Sherby Lane Shermans Dale, PA 17090 vi. MARCUS MCKNIGHT, ESQUIRE Irwin, McKnight & Hughes 60 W. Pomfert Street Carlisle, PA 17013 And IRWIN, McKNIGHT & HUGHES 60 W. Pomfert Street Carlisle, PA 17013 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Civil Action No. JURY TRIAL DEMANDED Action In Legal Malpractice 1?.2bo-3-25?a 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 in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO LE BAN DEMANDADO A USTED EN LA CORTE. SI ISTED QIERE DEFENDERSE DE ESTAS DEMANDAS ESPUESTAS EN LAS PAGINAS SIGNIENTES, USTED TIENE VEINTE (2) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. HACE FALTA ASEMTAR UNA COMPARENCIS ESCRITA O EN PERSONA O CON UN ABOGADO Y ENTREGAR A LA CORTE EN EPR, A ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NP SE DEFIENDA, LA CORTE TOMARA, MEDIDAS Y PEUDE CONTINUAR LA DEMANDA EN CONTRA SUYA SIN PREVIA AVISO 0 NOTIFICACION. ADEMAS, LA CORTE PUEDE DECIDIR A FAVOR DEL DEMANDADANTE Y REQUIERE QUE ESTED CUMPLA COM TODAS LAS PROVISIONES DE EST DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevin ig bsonna.gibpgrk.com Attorney For Plaintiff CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND No. 2003-256 Civil Term Jury Trial Demanded IRWIN MCKNIGHT & HUGHES Defendants COMPLAINT 1. Plaintiffs are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Shermans Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinafter sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was an employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiff's herein were the owners of a Texaco Gasoline Station franchise located at 10`h & Lowther Streets, in Camp Hill, Pennsylvania. 7. Plaintiff's had owned the subject matter Texaco franchise since May 1992 8. As part of their franchise agreement with Texaco, Plaintiffs did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Texaco for the use of the building and land. 9. Upon information and belief Defendant McKnight still has in his possession all of Plaintiffs Agreements with Texaco in that these documents were given to Defendant by the Plaintiffs herein. 10. Notwithstanding Plaintiff's requests to do so, Defendant McKnight refuses to return to Plaintiffs all of the aforesaid Texaco documents. 11. On or about Nov 1995, Plaintiff's decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs Texaco franchise. 12. On or about Dec 1995, Plaintiffs were presented with offer to purchase their Texaco franchise. 2 13. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 14. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Texaco and had a new lease for the next 3 years just awaiting execution by Plaintiffs. 15. The new 3 year lease provided for rent of $2700 the I" year, $2900 the 2nd year and $3100 the 3`d year. 16. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff s monthly rent for the Texaco station was $2,500 per month. 17. Both Plaintiff s lease and franchise agreement with Texaco were assignable. 18. It was always understood between Plaintiffs and their prospective purchaser Muhammad Farooq that as part of the sale of his Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Texaco and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 19. Plaintiffs franchise agreement with Texaco provided that Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld. 20. On or about March 1996, an employee of Texaco advised Plaintiffs that Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. 3 21. Upon information and belief, the reason why Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 22. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiff's Texaco franchise. 23. As a result of Texaco insisting on an increased monthly rent Plaintiffs lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 24. As a result of losing their Texaco Franchise sale on or about March 1996 Plaintiff's consulted with Defendant McKnight to ascertain if Plaintiff's had any legal recourse against Texaco regarding Texaco's refusal to approve the franchise sale without an increase in monthly rent as above described. 25. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiff's had a cause of action against Texaco for breach of contract and for damages under Pennsylvania's Petroleum Marketing Act for punitive damages for Texaco's outrageous conduct in refusing to consent to Plaintiffs proposed sale solely on the ground that Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Texaco franchises. 26. On or about April 1996 Defendant McKnight agreed to represent Plaintiffs in connection with filing a lawsuit against Texaco to advance the claims as described above. 27. Plaintiffs signed a contingent fee agreement with Defendant, their copy of which they can not presently locate. Subsequent to entering into the contingent fee agreement as 4 described above, it became Plaintiffs perception that Defendant McKnight was not moving forward with any dispatch with the case against Texaco. 28. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. 29. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiff s claims against Texaco, Plaintiff's made the decision to seek new counsel. 30. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute an action against Texaco but only on an hourly basis as opposed to a contingent fee relationship. 31. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act ["PMPA"]which governs in part rights and obligations of gas station owners and producers of gasoline such as Texaco. 32. Under Title 15 of the United States Code Section 2805 Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Texaco's refusal to consent to an assignment of Plaintiff s franchise was willful and/or malicious. 33. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Texaco's racial discrimination in seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 34. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 5 35. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 36. In Plaintiffs meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight with the one or two year periods described above. 37. Defendant McKnight did not file any litigation against Texaco in the one-year or two-year time periods described above. 38. Plaintiff believes, and therefore avers, that had litigation been filed against Texaco under PMPA and state law as defined above within the one and two year periods Plaintiffs would have obtained punitive damages under well in excess of $500,000 and an award of attorneys fees given Texaco outrageous conduct in refusing to allow a person of Indian/Pakistani/ Sikh ethnicity from owning a Texaco franchise. COUNTI 39. Plaintiffs repeat and re-allege paragraphs I through 38 above as if the same were set forth at length herein. 40. As Plaintiffs' attorney, Defendant McKnight owed Plaintiffs the duty to competently represent Plaintiffs interests in timely prosecuting an action against Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 6 41. Defendant McKnight breached the duty he owed Plaintiffs by Defendant's failure to file a timely action against Texaco under both state and federal law. 42. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Texaco, Plaintiffs would have recovered substantial compensatory and punitive damages well in excess of $500,000. 43. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs can not get another lawyer to proceed against Texaco on any financial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 44. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Texaco for the loss of the sales price to Mr. Muhammad Farooq. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNT 11 45. Plaintiffs repeat and re-allege paragraphs 1 through 44 above as if the same were set forth at length herein. 46. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant McKnight as described in Count I above. 7 WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. CERTIFICATE OF SERVICE I hereby certify that on this 3`d day of July 2003, I served a true and correct copy of the Plaintiff s Complaint, upon the following by U.S Mail, first class, postage prepaid: Marcus A. McKnight, Esquire 60 West Pomfret Street Carlisle PA 17613 PERKINS P.C. Bu:IN WIL IAM GIBBON Suite 200 East State Street Media PA 19063 610.565.1708 kevingibson@gibperk.com VERIFICATION Charles and Dianna Hollenbach hereby verify that the facts set forth in the foregoing Plaintiffs Complaint are true and correct to the best of our knowledge, information and belief. We understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. L/"'w"'4 1 /JUI.-e l Charles Hollenbach Dianna Hollenbach 9 r ? 'T frI ; r_ i McKISSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Edwin A.D. Schwartz, Esquire Pa. I.D. No. 75902 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, ATTORNEYS FOR DEFENDANT Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES Defendants. Jury Trial Demanded ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes in connection with the above captioned matter. Jeffrey B. Albert Edwin A.D. Schwartz Pa. I.D. No. 09859/75902 McKissock & Hoffinan, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 Dated: August 4, 2002 CERTIFICATE OF SERVICE 1, Edwin D. Schwartz, Esquire hereby certify that on August 4, 2003, a true and correct copy of the foregoing Entry of Appearance was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin william Gibson, Esquire Gibson & Perkins, P.C. 200 East State Street, Suite 105 Media, PA 19063 Edwin A.D. Schw wire Attorney for Defendants Dated: 0/41lao L c C;' T A F, ? L - ( J 1 l J < McKISSOCK & ROFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Edwin A.D. Schwartz, Esquire Pa. I.D. No. 75902 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES Defendants. ATTORNEYS FOR DEFENDANT Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Tenn Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes, by their attorneys, Jeffrey B. Albert, Esquire, and Edwin A. D. Schwartz, Esquire, hereby enter the following preliminary objections to plaintiffs' Complaint: 1. This is a legal malpractice action against defendant Marcus McKnight, Esquire (Count 1) and, by operation of the doctrine of respondeat superior, against defendant Irwin McKnight & Hughes (Count 11). According to plaintiffs, they retained defendant McKnight as their attorney to pursue a claim against Texaco because Texaco, as their franchisor, refused to consent to plaintiffs' attempted sale of their gasoline station to a Muhammad Farooq because he was Indian, Pakistani or a Sikh on the same terms as were then in effect for plaintiffs, requiring a payment of $2500 per month, and, instead, required a payment of $3500, an amount which Mr. Farooq was apparently unwilling to pay. Plaintiffs' Complaint 1112-2 1. Plaintiffs further allege that, because of the allegedly discriminatory decision by Texaco, they were unable to sell their gasoline station to Mr. Farooq for $110,000. Plaintiffs' Complaint, IT 21-22. 4. Plaintiffs claim that they had a cause of action against Texaco under subchapter I of the Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801 et seq., which if pursued within one year of the date of the wrongdoing would have permitted them to recover both compensatory and punitive damages against Texaco. Plaintiffs' Complaint 1131-32, 34. 5. Instead, plaintiffs aver that defendant McKnight took no action on their behalf. Plaintiffs' Complaint ¶¶ 28-29, 37. 6. However, as the records of this Court evidence, and this Court may take judicial notice of, a civil action was filed on August 4, 1998 ("1998 Action") by defendant McKnight on behalf of the plaintiffs against the franchisor, Star Enterprise. Exhibit "A" hereto. There was no federal cause of action available to plaintiffs against Texaco in that Texaco's conduct complied with the applicable federal law. 8. Plaintiffs had no claim against Texaco under state law, including the Gasoline, Petroleum Products and Motor Vehicle Accessories Act, 73 P.S. §§ 202-1 et seq., which would have been successful in that any such claim was preempted by federal law and, further, even if state law were not preempted, there was no violation of Pennsylvania law in any respect. 9. In the alternative, to the extent there were any viable state law cause of action against Texaco, that cause of action was preserved by the filing of the 1998 Action. 10. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying action. WHEREFORE, defendants Marcus McKnight, Esquire. and Irwin McKnight & Hughes demand that plaintiffs' Complaint be dismissed with prejudice. Jeffrey B. Albe Edwin A.D. Schwartz Pa. I.D. No. 09859/75902 McKissock & Hoffman, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: August 4, 2003 Exhlibilt "A" CHARLES C. HOL.LENRACH and : IN THE COURT OF COMMON PLEAS OF DIANNA L. MORROW, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . CIVIL ACTION - LAW V. nn ?7 NO. Cd - / STAR ENTERPRISE, a general partnership, JURY TRIAL DEMANDED Defendant. PRAECIPE FOR A WRIT OF SUMMONS TO: CURTIS R. LONG, PROTHONOTARY Please enter. my appearance on behalf of the plaintiffs, Charles C. HollenbacLiaand&iarpa L Morrow. Please issue a Writ of Summons upon the defendant, Star Enterpriser ;Pleall had the SherifYserve the defendant at the following address: ? o ;r: STAR ENTERPRISE C.. K =y 303 Fellowship Road v CS-18 :z ca -: Moorestown, NJ 08057 RespectfiilIy, submitted HUGHES By: .60 Weseftmfre[ S ee[ Carlisle. PA 17013 (717) 249-2353 Supreme Court I.D. No: 25476 Attorney for Plaintiff's, Date: August 4,1998 Charles C. Hollenbacb and Dianna L. Morrow CERTIFICATE OF SERVICE I, Edwin D. Schwartz, Esquire hereby certify that on August 4, 2003, a true and correct copy of the foregoing Preliminary Objections to Complaint was delivered by United States First- Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire Gibson & Perkins,P.C. 200 East State Street, Suite 105 Media, PA 19063 Edwin A.D. Schw ire Attorney for Defendants Dated: August 4, 2003 n c'? O C -A W V /J GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibson(a,gibperk.com CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES Defendants No. 2003-256 Civil Term Jury Trial Demanded FIRST AMENDED COMPLAINT 1. Plaintiff's are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Shermans Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinafter sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in Attorney For Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was an employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiff's herein were the owners of a Texaco Gasoline Station franchise located at 10"' & Lowther Streets, in Camp Hill, Pennsylvania. 7. Plaintiff's had owned the subject matter Texaco franchise since May 1992. 8. At all relevant times the Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiff's herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". 9. At all times relevant Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 10. At all relevant times Star Enterprises was the alter ego of Texaco Oil Company. 11. As part of their franchise agreement with Star Enterprises/Texaco, Plaintiff's did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. 12. Upon information and belief Defendant McKnight still has in his possession all of Plaintiff's Agreements with Star Enterprises/Texaco in that these documents were given to Defendant by the Plaintiffs herein. 2 13. Notwithstanding Plaintiff s requests to do so, Defendant McKnight refuses to return to Plaintiffs all of the aforesaid Star Enterprises/Texaco documents. 14. On or about Nov 1995, Plaintiffs decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs Star Enterprises/Texaco franchise. 15. On or about Dec 1995, Plaintiffs were presented with offer to purchase their Star Enterprises/Texaco franchise. 16. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 17. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Star Enterprises/Texaco and had a new lease for the next 3 years just awaiting execution by Plaintiffs. 18. The new 3 year lease provided for rent of $2700 the 1" year, $2900 the 2"d year and $3100 the 3rd year. 19. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs monthly rent for the Star Enterprises/Texaco station was $2,500 per month. 20. Both Plaintiffs lease and franchise agreement with Star Enterprises/Texaco were assignable. 21. It was always understood between Plaintiffs and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Star Enterprises/Texaco 3 and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 22. Plaintiffs franchise agreement with Star Enterprises/Texaco provided that Star Enterprises/Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld. 23. On or about March 1996, an employee of Star Enterprises/Texaco advised Plaintiffs that Star Enterprises/Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. 24. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 25. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiffs Star Enterprises/Texaco franchise. 26. As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiff s lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 27. As a result of losing their Star Enterprises/Texaco Franchise sale on or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiff s had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's 4 refusal to approve the franchise sale without an increase in monthly rent as above described. 28. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiff's had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under Pennsylvania's Petroleum Marketing Act for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiff's proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. 29. On or about April 1996 Defendant McKnight agreed to represent Plaintiff's in connection with filing a lawsuit against Star Enterprises/Texaco to advance the claims as described above. 30. Plaintiff's signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. Subsequent to entering into the contingent fee agreement as described above, it became Plaintiffs perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. 31. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. 32. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiffs claims against Star Enterprises/Texaco, Plaintiffs made the decision to seek new counsel. 33. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute 5 an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. 34. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act ["PMPA"], which governs in part rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. 35. Under Title 15 of the United States Code Section 2805 Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment of Plaintiffs franchise was willful and/or malicious. 36. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprises/Texaco's racial discrimination in seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 37. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 38. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 39. In Plaintiffs meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for 6 attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight with the one or two year periods described above. 40. In response to the initial Complaint filed by Plaintiff's herein, the Defendants filed Preliminary Objections. [A true and correct copy of said Preliminary Objections are attached hereto and made a part hereof ] 41. Attached to the Defendant's Preliminary Objections is a Writ of Summons purportedly filed by the Defendant McKnight against an entity named as `Star Enterprise, a general partnership". 42. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons "on behalf of Plaintiffs". 43. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons on "August 4, 1998". 44. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that the defendant named in the Writ is Plaintiff s "franchisor". 45. The Writ of Summons filed by the Defendant McKnight as described above was never served against Star Enterprises. 46. Under Pennsylvania law, failure to serve a Writ of Summons with 30 days of its being issued will not toll the running of any applicable Statute of Limitation. 47. In order to toll and/or be within the one year Statute of Limitations against Star Enterprises/Texaco under the PMPA, Defendant McKnight would have had to file a Writ of Summons and or Complaint on or before April 1, 1997. 7 48. In order to toll and/or be within the two year Statute of Limitations against Star Enterprises/Texaco under applicable Pennsylvania franchise law Defendant McKnight would have had to file a Writ of Summons and or Complaint on or before April 1, 1998. 49. The Writ of Summons filed by Defendant McKnight on August 4, 1998 was filed outside both the aforementioned one and two year limitations periods. 50. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not preserve either limitation period in that McKnight took no steps to have the Writ personally served upon Star Enterprise within 30 days of filing same. 51. Notwithstanding the language in the Writ filed by McKnight that the Sheriff should serve same, no sheriff service was made upon Star Enterprise. 52. Upon information and belief, Defendant never paid for Sheriff Service of the Writ. 53. Under Pennsylvania Law, a Sheriff cannot effect personal service of a Writ of Summons upon an out of State Defendant such as Star Enterprise. 54. Plaintiff believes, and therefore avers, that had litigation been filed against Star Enterprises/Texaco under PMPA and state law as defined above within the one and two year periods Plaintiffs would have obtained punitive damages under well in excess of $500,000 and an award of attorneys fees given Star Enterprises/Texaco's outrageous conduct in refusing to allow a person of Indian/Pakistani/ Sikh ethnicity from owning a Star Enterprises/Texaco franchise. 8 COUNTI 55. Plaintiffs repeat and re-allege paragraphs 1 through 54 above as if the same were set forth at length herein. 56. As Plaintiffs' attorney, Defendant McKnight owed Plaintiff's the duty to competently represent Plaintiff's interests in timely prosecuting an action against Star Enterprises/Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 57. Defendant McKnight breached the duty he owed Plaintiffs and deviated from the applicable standard of care by a similarly situated litigation attorney by Defendant's failure to file a timely action against Star Enterprises/Texaco on or before April 1, 1997 and or April 1, 1998, under both state and federal law. 58. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Star Enterprises/Texaco, Plaintiffs would have recovered substantial compensatory and punitive damages well in excess of $500,000. 59. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs can not get another lawyer to proceed against Star Enterprises/Texaco on any financial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 60. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Star Enterprises/Texaco for the loss of the sales price to Mr. Muhammad Farooq. 9 WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNT II 61. Plaintiffs repeat and re-allege paragraphs 1 through 60 above as if the same were set forth at length herein. 62. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant McKnight as described in Count I above. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. PERKINS P.C. BY: UVgN WILLIAM GIBSON 10 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of August 2003, I served a true and correct copy of the Plaintiff's First Amended Complaint, upon the following by U.S Mail, first class, postage prepaid: Jeffrey B. Albert, Esquire McKissock & Hoffman 1700. Market Street, Suite 3000 Philadelphia, PA 19103-3930 & PERKINS P.C. WILLIAM 200 asYState Stree Me 'a PA 1906 610.5 kevingibson@gibperk.com 11 VERIFICATION I, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that the facts set forth in the foregoing First Amended Complaint are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Complaint. Upon Plaintiffs availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsificatii , ESQ. 12 McKISSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Edwin A.D. Schwartz, Esquire Pa. I.D. No. 75902 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES Defendants. ATTORNEYS FOR DEFENDANT Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes, by their attorneys, Jeffrey B. Albert, Esquire, and Edwin A. D. Schwartz, Esquire, hereby enter the following preliminary objections to plaintiffs' Complaint: 1. This is a legal malpractice action against defendant Marcus McKnight, Esquire (Count I) and, by operation of the doctrine of respondeat superior, against defendant Irwin McKnight & Hughes (Count II). 2. According to plaintiffs, they retained defendant McKnight as their attorney to pursue a claim against Texaco because Texaco, as their franchisor, refused to consent to plaintiffs' attempted sale of their gasoline station to a Muhammad Farooq because he was Indian, Pakistani or a Sikh on the same terns as were then in effect for plaintiffs, requiring a payment of $2500 per month, and, instead, required a payment of $3500, an amount which Mr. Farooq was apparently unwilling to pay. Plaintiffs' Complaint IM 12-21. 3. Plaintiffs further allege that, because of the allegedly discriminatory decision by Texaco, they were unable to sell their gasoline station to Mr. Farooq for $110,000. Plaintiffs' Complaint, ¶¶ 21-22. 4. Plaintiffs claim that they had a cause of action against Texaco under subchapter I of the Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801 et seq., which if pursued within one year of the date of the wrongdoing would have permitted them to recover both compensatory and punitive damages against Texaco. Plaintiffs' Complaint n 31-32, 34. 5. Instead, plaintiffs aver that defendant McKnight took no action on their behalf. Plaintiffs' Complaint ¶q 28-29,37. 6. However, as the records of this Court evidence, and this Court may take judicial notice of, a civil action was filed on August 4, 1998 ("1998 Action') by defendant McKnight on behalf of the plaintiffs against the franchisor, Star Enterprise. Exhibit "A" hereto. There was no federal cause of action available to plaintiffs against Texaco in that Texaco's conduct complied with the applicable federal law. 8. Plaintiffs had no claim against Texaco under state law, including the Gasoline, Petroleum Products and Motor Vehicle Accessories Act, 73 P.S. §§ 202-1 et seq., which would 2 have been successful in that any such claim was preempted by federal law and, further, even if state law were not preempted, there was no violation of Pennsylvania law in any respect. 9. In the alternative, to the extent there were any viable state law cause of action against Texaco, that cause of action was preserved by the filing of the 1998 Action. 10. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying action. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand that plaintiffs' Complaint be dismissed with prejudice. r - -- ?Z- 4? ? Jeffrey B. Alb Edwin A.D. Schwartz Pa. I.D. No. 09859/75902 McKissock & Hoffinan, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: August 4, 2003 Exhibit "A" CHARLES C. HOLIENRACH and : IN THE COURT OF COMMON PLEAS OF DIANNA L. MORILOW, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL A/nC?TION - LAW 7 v NO. 7o?9 / STAR ENTERPRISE, a general partnership, JURY TRIAL DEMANDED Defendant. PRAECiPE FORA WRIT OF SUMMON$ TO: CURTIS R. LONG, PROTHONOTARY Please eater my appearance on behalf of the plaintiffs, Charies C. Hollen OuIrm L. Motmw. Please issue a Writ of Summons upon the defendant, Star Entetpri , lem h2A the Sheriff sem the defendant at the following address: ,' STARENTr" RPRISE_`; 3033 FeUowWp Road CS-IS Moorestown, NJ 08057 Respectfully, submitted By: Date: August 4.1998 60 Wesi po Carlisle. PA (717) 249-2353 Supreme Court I.D. No: 25476 Attorney for Plaintiffs, Charles C. Hollenbacb and Dianna L Vorrow cWQGHTAk XUGHES CERTIFICATE OF SERVICE 1, Edwin D. Schwartz, Esquire hereby certify that on August 4, 2003, a true and correct copy of the foregoing Preliminary Objections to Complaint was delivered by United States First- Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire Gibson & Perkins, P.C. 200 East State Street, Suite 105 Media, PA 19063 &A.D.. Schw Attorney for Defendants Dated: August 4, 2003 McKISSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Edwin A. D. Schwartz, Esquire Pa. I.D. No. 75902 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLESHOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, V. MARCUS MCKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES, Defendants. ATTORNEYS FOR DEFENDANT Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' FIRST AMENDED COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes, by their attorneys, Jeffrey B. Albert, Esquire, and Edwin A. D. Schwartz, Esquire, hereby enter the following preliminary objections to plaintiffs' First Amended Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028 and Cumberland County Rule of Procedure 208-1, and set forth the following in support thereof: This is a legal malpractice action against defendant Marcus McKnight, Esquire (hereinafter, "McKnight") (Count I) and, by operation of the doctrine of respondeat superior, against defendant law firm, Irwin McKnight & Hughes (hereinafter, "the law firm") (Count In. Plaintiffs' First Amended Complaint, ¶J 55-62. A copy of plaintiffs' Amended Complaint is attached hereto and marked as Exhibit "A." 2. According to plaintiffs, they retained defendant McKnight as their attorney to pursue a claim against Texaco Oil Company and Star Enterprises (hereinafter, "Texaco" and "Star," respectively) because Texaco / Star, as the co-franchisors., refused to consent to plaintiffs' attempted sale of their gasoline station franchise to a Muhammad Farooq - allegedly because he was of "Indian / Pakistani / Sikh descent" - on the same terms as were then in effect for plaintiffs. Instead of a required a payment of $2,500 per month, Texaco / Star increased the monthly rent payment to $3,500, an amount which Mr. Farooq was apparently unwilling to pay. Plaintiffs' First Amended Complaint, ¶T 14-27. 3. Plaintiffs further allege that, because of the allegedly discriminatory actions by Texaco /Star directed to Mr. Farooq, they were unable to sell their gasoline station franchise to Mr. Farooq for $110,000. Plaintiffs' First Amended Complaint, ¶¶ 24-26. 4. Plaintiffs claim that they had a cause of action against Texaco / Star under subchapter I of the federal Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801, et seq. (hereinafter, the "PMPA"), which, if pursued within one year of the date of the wrongdoing, would have permitted them to recover both compensatory as well as punitive damages against Texaco / Star. Plaintiffs' First Amended Complaint, % 34-38. 5. Instead, plaintiffs allege that defendants McKnight and the law firm took no actions on their behalf and missed applicable statute of limitations filing deadlines. Plaintiffs' First Amended Complaint, ¶¶ 30-32, 39, 47-54. 6. However, as the records of this Court evidence, and as this Court may take judicial notice of, a civil action was filed on August 4, 1998 (hereinafter, the "1998 Action") by defendant McKnight on behalf of the plaintiffs against co-franchisor Star. A copy of the Praecipe For A Writ of Summons against Star is attached hereto and marked as Exhibit "B." 7. There was no federal cause of action available to plaintiffs against Texaco / Star in that Texaco / Star's conduct complied with applicable federal law, as plaintiffs do not allege violations of the provisions of the PMPA in negotiating the ownership assignment, in raising the rental / franchise fees and in terminating the franchise relationship. See 15 U.S.C. §§ 2801, et seq. 8. Plaintiffs had no viable claim against Texaco / Star under Pennsylvania state law, including the Gasoline, Petroleum Products and Motor Vehicle Accessories Act, 73 P.S. §§ 202- 1, et seq. (hereinafter, the "Gasoline Act"), in that any such claim was preempted by federal law. Amoco Oil Co. v. Burns, 496 Pa. 336, 437 A.2d 381 (1981) (P'MPA supersedes and preempts any state statute covering the same subject manner, including the Gasoline Act); Johnson v. Mobil Oil Corp., 364 Pa. Super. 275, 528 A.2d 155 (1987) (same); Castner v. Exxon Corp., 50 Pa. D. & C.3d 541 (C.P. Bucks Cty. 1989) (PMPA bars oil company franchisee from maintaining state law cause of action). 9. Further, even if state law were not preempted, there was no violation of Pennsylvania law in any respect. See, e.g., Witmer v. Exxon Corp., 394 A.2d 1276 (Pa. Super. 1978) (Gasoline Act does not prevent lessors from raising service station rentals and indeed provides lessor may terminate a lease for nonpayment of rent pursuant to 73 P.S. § 202-3(b)(6)). 10. In the alternative, to the extent there were any viable state law causes of action against Texaco / Star, those causes of action were preserved by defendant McKnight's filing of the 1998 Action. If plaintiffs' claims were actionable under Pennsylvania law and were not preempted by the PMPA, under 42 Pa. C.S.A. § 5525 and pursuant to the "gist of the action" doctrine, the applicable statute of limitations for these claims would be four years. Bohler- Uddeholm America Inc v Ellwood Group, Inc., 247 F.3d 79, 105 (3d Cir. 2001); Bash v. Bell Tel Co of Pennsylvania, 411 Pa. Super. 347, 601 A.2d 825, 829 (Pa. Super. 1992). 11. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying ,action. Under both the PMPA and applicable Pennsylvania law, punitive damages are not available: for mere negligence, and instead are proper only when a party's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct, and are awarded to punish that person for such conduct. 15 U.S.C. § 2805; SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991). Outrageous conduct is an "act done with a bad motive or with reckless indifference to the interests of others." Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743, 745 (1980) (quoting Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157 (1970)). Here, defendants have failed to assert such outrageous conduct on behalf of defendants directed to plaintiffs. See Exhibit "A." See also Ferguson v Lieff Cabraser, Heimann & Bernstein. LLP, 30 Ca1.4"t' 1037, 69 P.3d 965, 135 Ca1.Rptr.2d 46 (Cal. 2003) (after canvassing case law throughout the United States, concludes that, consistent with the ALI's recent Restatement (Third) of the Law Governing Lawyers, legal malpractice plaintiffs may not recover lost punitive damages as compensatory damages). 4 13. Finally, defendants McKnight and the law firm preliminarily object to plaintiffs' First Amended Complaint as being vague and unspecific, in violation of Pennsylvania Rule of Civil Procedure 1019(a) which requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a). Plaintiffs fail to set forth the specific details of the application made to obtain the consent to transfer / assign the franchise rights and failed to attach or set forth the terms of their contract with Texaco / Star. The lack of specificity of a plaintiff's pleadings is properly raised by way of preliminary objection. Pa.R.Civ.P. 1028(a)(3); Connor v. Allegheny General Hos., 501 Pa. 306, 461 A.2d 600 (1983). A complaint must do more than give the defendants notice of what the plaintiffs' claim is and the grounds upon which it rests: "It should formulate the issues by fully summarizing the material facts." General State Authority v. The Sutter CoM., 24 Pa. Commw. 391, 356 A.2d 377 (1976); Connor v Allegheny General Hosu_, 501 Pa. 306, 461 A.2d 600 (1983). In addition to the plaintiffs' first amended complaint wrongly identifying the PMPA as being a Pennsylvania state statute (Plaintiffs' First Amended Complaint, ¶¶ 28, 38), the first amended complaint makes unsupported references to Pennsylvania law and to applicable statute of limitations deadlines. See, e.g., Plaintiffs' First Amended Complaint, 1137-39, 47-50. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand that plaintiffs' First Amended Complaint be dismissed with prejudice. Jeffrey B. Albert Edwin A. D. Schwartz Pa. I.D. No. 09859/75902 MCKISSOCK & HOFFMAN, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: August 26, 2003 CERTIFICATE OF SERVICE I, JEFFREY B. ALBERT, ESQUIRE hereby certify that on August 26, 2003, a true and correct copy of the foregoing Preliminary Objections to Plaintiff<.' First Amended Complaint was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBSON & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Dated: August 26, 2003 Exhibit A GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibson@pibnerk corn Attorney For Plaintiffs CHARLES HOLLENBACH AND ) DIANNA L. HOLLENBACH ) Plaintiff ) V, ) MARCUS McKNIGHT, ESQ. ) AND ) IRWIN MCKNIGHT & HUGHES ) Defendants ) No. 2003-256 Civil Term Jury Trial Demanded FIRST AMENDED COMPLAINT 1. Plaintiff's are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Sherman Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinafter sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West PomFert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was an employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiff's herein were the owners of a Texaco Gasoline Station franchise located at l Os' & Lowther Streets„ in Camp Hill, Pennsylvania. 7. Plaintiff's had owned the subject matter Texaco franchise since May 1992. 8. At all relevant times the Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiff's herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". 9. At all times relevant Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 10. At all relevant times Star Enterprises was the alter ego of Texaco Oil Company. 11. As part of their franchise agreement with Star Enterprises/Texaco, Plaintiff's did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. 12. Upon information and belief Defendant McKnight still has in his possession all of Plaintiff s Agreements with Star Enterprises/Texaco in that these documents were given to Defendant by the Plaintiffs herein. 13. Notwithstanding Plaintiff's requests to do so, Defendant McKnight refuses to return to Plaintiffs all of the aforesaid Star Enterprises/Texaco documents. 14. On or about Nov 1995, Plaintiff's decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiff's Star Enterprises/Texaco franchise. 15. On or about Dec 1995, Plaintiff's were presented with offer to purchase their Star Enterprises/Texaco franchise. 16. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 17. At the time that Plaintiff's were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Star finterprises/Texaco and had a new lease for the next 3 years just awaiting execution by Plaintiffs. 18. The new 3 year lease provided for rent of $2700 the I" year, $2900 the 2nd year and $3100 the 3`d year. 19. At the time that Plaintiff's were presented with the offer to purchase as defined above, Plaintiffs monthly rent for the Star Enterprises/Texaco station was $2,500 per month. 20. Both Plaintiffs lease and franchise agreement with Star Enterprises/Texaco were assignable. 21. It was always understood between Plaintiffs and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Star Enterprises/Texaco 3 and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 22. Plaintiffs franchise agreement with Star Enterpri=,aexaco provided that Star Enterprises/Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld. 23. On or about March 19%, an employee of Star Enterprises/Texaco advised Plaintiff's that Star Enterprises/Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. 24. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 25. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiffs Star Enterprises/Texaco franchise. 26. As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiffs lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 27. As a result of losing their Star Enterprises/Texac* Franchise sale on or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiff's had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's 4 refusal to approve the franchise sale without an increase in monthly rent as above described. 28. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiffs had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under Pennsylvania's Petroleum Marketing Act for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiffs proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. 29. On or about April 1996 Defendant McKnight agreed to represent Plaintiff s in connection with filing a lawsuit against Star Enterprises/Texaco to advance the claims as described above. 30. Plaintiffs signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. Subsequent to entering into the contingent fee agreement as described above, it became Plaintiffs perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. 31. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. 32. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiffs claims against Star Enterprises/Texaco, Plaintiffs made the decision to seek new counsel. 33. On or about March 2001, plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute 5 an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. 34. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act r'PMPA"], which governs in part rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. 35. Under Title 15 of the United States Code Section 2805 Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment: of Plaintiffs franchise was willful and/or malicious. 36. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprises/Texaco's racial discrimination in seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 37. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 38. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 39. In Plaintiff's meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for 6 attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight with the one or two year periods described above. 40. In response to the initial Complaint filed by Plaintiff's herein, the Defendants filed Preliminary Objections. [A true and correct copy of said Preliminary Objections are attached hereto and made a part hereof.] 41. Attached to the Defendant's Preliminary Objections is a Writ of Summons purportedly filed by the Defendant McKnight against an entity named as `Star Enterprise, a general partnership". 42. In paragraph 6 of the Defendant's preliminary objections the Defendant states that Defendant McKnight filed the Writ of Summons "on behalf of Plaintiff's". 43. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons on "August 4, 1998". 44. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that the defendant named in the Writ is Plaintiffs "franchisor". 45. The Writ of Summons filed by the Defendant McKnight as described above was never served against Star Enterprises. 46. Under Pennsylvania law, failure to serve a Writ of Summons with 30 days of its being issued will not toll the running of any applicable Statute of Limitation. 47. In order to toll and/or be within the one year Statute of Limitations against Star Enterprises/Texaco under the PMPA, Defendant McKnight would have had to file a Writ of Summons and or Complaint on or before April 1, 1997. 7 48. In order to toll and/or be within the two year Statute of Limitations against Star Enterprises/Texaco under applicable Pennsylvania franchise law Defendant McKnight would have had to file a Writ of Summons and or Complaint on or before April 1, 1998. 49. The Writ of Summons filed by Defendant McKnight on August 4, 1998 was filed outside both the aforementioned one and two year limitations periods. 50. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not preserve either limitation period in that McKnight took no steps to have the Writ personally served upon Star Enterprise within 30 days of filing same. 51. Notwithstanding the language in the Writ filed by McKnight that the Sheriff should serve same, no sheriff service was made upon Star Enterprise. 52. Upon information and belief, Defendant never paid for Sheriff Service of the Writ. 53. Under Pennsylvania Law, a Sheriff cannot effect personal service of a Writ of Summons upon an out of State Defendant such as Star Enterprise. 54. Plaintiff believes, and therefore avers, that had litigation been filed against Star Enterprises/Texaco under PMPA and state law as defined above within the one and two year periods Plaintiff's would have obtained punitive damages under well in excess of $500,000 and an award of attorneys fees given Star Entsrprises/Texaco's outrageous conduct in refusing to allow a person of Indian/Pakistani/ Sikh ethnicity from owning a Star Enterprises/Texaco franchise. 9 COUNTI 55. Plaintiffs repeat and re-allege paragraphs 1 through 54 above as if the same were set forth at length herein. 56. As Plaintiffs' attorney, Defendant McKnight owed Plaintiffs the duty to competently represent Plaintiffs interests in timely prosecuting an action against Star Enterprises/Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 57. Defendant McKnight breached the duty he owed Plaintiffs and deviated from the applicable standard of care by a similarly situated litigation attorney by Defendant's failure to file a timely action against Star Enterprises/Texaco on or before April 1, 1997 and or April 1, 1998, under both state and federal law. 58. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Star Enterprises/Texaco, Plaintiffs would have recovered substantial compensatory and punitive damages well in excess of $500,000. 59. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs can not get another lawyer to proceed against Star Enterprises/Texaco on any financial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 60. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Star Enterprises/Texaco for the loss of the sales price to Mr. Muhammad Farooq. 9 WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and, post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNTII 61. Plaintiffs repeat and re-allege paragraphs 1 through 60 above as if the same were set forth at length herein. 62. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant M6night as described in Count I above. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. PERKINS P.C. GIBSON 10 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of August 2003, I served a true and correct copy of the Plaintiff's First Amended Complaint, upon the following by U.S Mail, first class, postage prepaid: Jeffrey B. Albert, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 & PERKINS P.C. s`[ State PA 190 kevingibson@gibperk.com 11 VERIFICATION 1, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that the facts set forth in the foregoing First Amended Complaint are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Complaint. Upon Plaintiffs availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsifica 12 MciQSSOCI{ & ROFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Edwin AD. Schwartz, Esquire Pa. I.D. No. 75902 1700 Market street, Suite 3000 Philadelphia, PA 19103 (215)246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES Defendants. ATTORNEYS FOR DEFENDANT Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial I)emanded DEFENDANTS'PRELEMNARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight" Hughes, by their attorneys, Jeffrey B. Albert, Esquire, and Edwin A. D. Schwartz, Esquire, hereby enter the following preliminary objections to plaintiffs' Complaint: 1. This is a legal malpractice action against defendant Marcus McKnight, Esquire (Count 1) and, by operation of the doctrine of respondest superior, against defendant Irwin McKnight & Hughes (Count II). 2. ' According to plaintiffs, they'mtained defendant McKnight as their attorney to pursue a claim against Texaco because Texaco, as their fianchisor, refused to consent to plaintiffs' attempted sale of their gasoline station to a Muhammad Parooq because he was Indian, Pakistani or a Sikh on the same terms as were then in effect for plaintiffs, requiring a payment of $2500 per month, and, instead, required a payment of $3500, an amount which Mr. FamN was apparently unwilling to pay. Plaintiffs' Complaint 19 12-21. 3. Plaintiffs further allege that, because of the allegedly discriminatory decision by Texaco, they were unable to sell their gasoline station to Mr. Farooq for $110,000. Plaintiffs' Complaint, IN 21-22. 4. Plaintiffs claim that they had a cause of action against Texaco under subchapter I of the Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801 et seq., which if pursued within one year of the date of the wrongdoing would have permitted them to recover both compensatory and punitive damages against Texaco. Plaintiffs' Complaint 9'( 31-32, 34. 5. Instead, plaintiffs aver that defendant McKnight took no action on their behalf. Plaintiffs' Complaint 'n 28-29,37. 6. However, as the records of this Court evidence, and this Court may take judicial notice of, a civil action was filed on August 4,1998 (°1998 Action') by defendant McKnight on behalf of the plaintiffs against the franchisor, Star Enterprise. Exhibit "A" hereto. 7. There was no federal cause of action available to plaintiffs against Texaco in that Texaco's conduct complied with the applicable federal law. 8. Plaintiffs had no claim against Texaco under state law, including the Gasoline, petroleum products and Motor vehicle Accessories Act, 73 P.S. §§ 202-1 et seq., which would have been successful in that any such claim was preempted by federal law and, further, even if state law were not preempted, there was no violation of Pennsylvania law in any respect. 9. In the alternative, to the extent there were any viable state law cause of action against Texaco, that cause of action was preserved by the filing of the 1998 Action. 10. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying action. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand that plaintiffs' Complaint be dismissed with prejudice. Jeffrey B. Alb Edwin A.D. Schwartz Pa. LD. No. 09859/75902 McKinock & Hoffman, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: August 4, 2003 Exhibit "A" CHARM C. HOURNBACH and DIANNA L. MOUOW, Piahntffs V. STAR ENTERPRISE, s general pameiship, Defendant. : IN THg COURT OF COMMON PL" S OF : CUMOMAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. /W30 ' %o"97 JURY TRIAL. DEMANDED TO: CURTIS R. LONG, PROTHONOTARY Please enw my appeuence on behalf of the plaintiffs, Charles C. Hoi d&iaaa L. Mamw. Please issue a Writ of Summons upon the defmdsnt, Star Entw; leaiq haA the Sheriff save the defendant at the fa wing address: r Ajj STA1LIE TMMSE ?-r 303 EcUowd4 Road x to CS-18 Moorestown, NJ 08057 ReapeetMy. submitted By: HUGHES .60 Wed Pomfic S-1- CarUsle, PA 17013 (717) 244-13S3 Supreme Court I.D. No: 23476 Atk»ney for PlaintitB, Date: August 4,1498 ChaWes C HoReabaeh and Dina L. Morrow CERTIFICATE OF SERVICE 1, Edwin D. Schwartz, Esquire hereby certify that on August 4, 2003, a true and corral copy of the foregoing Preliminary Objections to Complaint was delivered by United States First- Class Mail, Postage prepaid, as follows: Kevin William Gibson, Esquire Gibson & Perltias, P.C. 200 East State Street, Suite 105 Media, PA 19063 Edwin A.D. Schw , ?- Attorney for Defendants Dated: August 4, 2003 Exhibit B CU.,UXLES C. HOLUN'BACH and Di ANNA L. MORR 'VV, Plaintiffs V. STAR ENTERPRISE, a general Partnership, Defendant. M ESERY,COURT OF PENN5YL PLEAS CUM 'ANIA C1VtL ACTION - LAW NO. T, JURY TRIAL DEMANDED pRAF- APE FOR A WRYT OX' SUU KPNS Respectfully, submitted ..,v.rr,.r XLT.'NIGHTA 1dUGHES .l TO: CURTIs R. LONG, PROTHONOTARY Please enter my appearance on behalf of the plaintiffs, Charles C. Hollenbacr!: hut: pa Ir. Morrow. Please issue a Writ of Summons upon the defendant, Star Entetprise 1 ,!!0 address: the Sheriff serve the defendant at the following Y, ?. STAR ENTERPRISE r; ,a 303 fellowship Road 7 ca CS-18 Moorestown, NJ 08057 Date: August 4,1998 $y: 60 West P=fret b ee Carlisle, PA 1701'.1 (717)249-2353 Supreme Court I.D. No: 25476 Attorney for plaintiffs, Charles C. Hollenbach and Dianna L. Morrow ' co u Ts Yl I ( ' v mac, . Si t __ vas tixul Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. McKISSOCK & HOFFMAN, p,C, Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Thomas E. Mellon, III, Esquire Pa. I.D. No. 81631 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLEN13ACH V. MARCUS McKNIGHT, ESQUIRE and IRWIN MCKNIGHT & HUGHES ATTORNEYS FOR DEFENDANTS Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded State matter to be argued (i.e., plaintiff's motion or new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS, SECOND AMENDED COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff(s): (b) for defendant(s): 4. Kevin William Gibson, Esquire GIBSON & PERK,INS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Jeffrey B. Albert, Esquire McKISSOCK &: HOFFMAN P.C. 1700 Market Street, Suite 3000 Philadelphia, PA, 19103 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: Dated: October 3, 2003 n o rD -G McKISSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Thomas E. Mellon, III, Esquire PA I.D. No.s 09859 / 81631 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES, Defendants. ATTORNEYS FOR DEFENDANTS Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes, by their attorney, Jeffrey B. Albert, Esquire, hereby enter the following preliminary objections to plaintiffs' Second Amended Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028 and Cumberland County Rule of Procedure 208-1, and set forth the following in support thereof: This is a legal malpractice action against defendant Marcus McKnight, Esquire (hereinafter, "McKnight") (Count I) and, by operation of the doctrine of respondeat superior, against defendant law firm, Irwin McKnight & Hughes (hereinafter, "the law firm") (Count II). Plaintiffs' Second Amended Complaint, ¶¶ 66-73. A copy of plaintiffs' Second Amended Complaint is attached hereto and marked as Exhibit "A." 2. According to plaintiffs, they retained defendant McKnight as their attorney to pursue a claim against Texaco Oil Company and Star Enterprises (hereinafter, "Texaco" and "Star," respectively) because Texaco and Star, as the co-franchisors, refused to consent to plaintiffs' attempted sale of their gasoline station franchise to Muhammad Farooq (hereinafter, "Farooq") - allegedly because Farooq was of "Indian / Pakistani / Sikh descent" - on the same terms as were then in effect for plaintiffs. Instead of a required a payment of $2,500 per month, Texaco / Star increased the monthly rent payment to $3,500, an amount which Farooq was apparently unwilling to pay. Plaintiffs' Second Amended Complaint, 1114-27. 3. Plaintiffs also allege that, because of the allegedly discriminatory actions by Texaco / Star directed at Farooq, they were unable to sell their gasoline station franchise to Mr. Farooq for $110,000. Plaintiffs' Second Amended Complaint, 1124-26. 4. Plaintiffs claim that they at one time had a cause of action against Texaco / Star under the federal Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801, et seq. (hereinafter, the "PMPA' ), which, if pursued within one year of the date of the alleged breach of the franchise agreement, would have permitted plaintiffs to recover both compensatory as well as punitive damages against Texaco / Star. Plaintiffs' Second Amended Complaint, ¶¶ 36-41. 5. Plaintiffs' second amended complaint alleges that defendants McKnight and the law firm took insufficient action on their behalf and that defendants McKnight and the law firm missed applicable statute of limitations filing deadlines. Plaintiffs' Second Amended Complaint, 1132-34, 42, 48-65. 6. However, as the records of this Court evidence, and as this Court may take judicial notice of, a civil action was filed on August 4, 1998 (hereinafter, the "1998 Action") by 2 defendant McKnight on behalf of the plaintiffs against co-franchisor Star. A copy of the Praecipe For A Writ of Summons against Star is attached hereto and marked as Exhibit "B." 7. There was never any federal cause of action available to plaintiffs against Texaco / Star in that Texaco / Star's conduct complied with the PMPA., as plaintiffs do not allege violations of the provisions of the PMPA in negotiating the ownership assignment, in raising the rental / franchise fees and in terminating the franchise relationship. See 15 U.S.C. §§ 2801, et seq. Further, as there was never any other federal cause of action available to plaintiffs against Texaco / Star, plaintiffs attempt to rely upon a theory of alleged federal law cause of action for "constructive refusal to renew." Plaintiffs' Second Amended Complaint, ¶ 29. Numerous gas station franchisee claims have been brought based upon some sort of federal "constructive" wrongdoing by franchisors and courts have consistently refused to hold these claims actionable. See, e.g., Jet. Inc. v. Shell Oil Co., 2002 U.S. Dist. LEXIS 22951 (N.D. Ill., Nov. 22,2002); Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846 (7t' Cir. 2002). 8. Although plaintiffs assert that the "lease and franchise agreement with Star Enterprise / Texaco were assignable," (Plaintiffs' Second Amended Complaint, ¶ 20), they later acknowledge that "Star Enterprises / Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld." Plaintiffs' Second Amended Complaint, 122. As Mikeron. Inc v. Exxon Co. U.S.A., 264 F. Supp.2d 268 (D. Md. 2003), makes clear, absent a requirement that the franchisor approve assignment by a franchise, there is no viable claim under federal law for refusing consent to an assignment. See also Bill Call Ford v. Ford Motor Co., 830 F. Supp. 1053 (N.D. Ohio 1993). Federal law does not provide any rights to a third-party, such as a proposed assignee. Famaam v. Atlantic Richfield, 2002 Cal. App. Unpub. LEXIS 1954 (Cal. Ct. App., June 7, 2002) (non- precedential). Further, as held in Glenn v. Exxon Co USA., 801 F. Supp. 1290, 1296 n. 4 (D. Del. 1992), federal law preempts claims involving consent to assign franchise rights beyond the term of the existing franchise from being pursued under state law. See generally, Castner v. Exxon Co., 50 D.&C.3d 541 (C.P. Bucks Cty. 1989) (federal law preempts claims concerning issues concerning renewal of gasoline dealer franchises). 9. In addition to never having any viable federal cause of action, at no time ever did plaintiffs have a viable claim against Texaco / Star under Pennsylvania state law, including the Gasoline, Petroleum Products and Motor Vehicle Accessories .Act, 73 P.S. §§ 202-1, et seq. (hereinafter, the "Gasoline Act"), in that any such claim was preempted by federal law. Amoco Oil Co. v. Bums, 496 Pa. 336, 437 A.2d 381 (1981) (PMPA supersedes and preempts any state statute covering the same subject manner, including the Gasoline Act); Johnson v. Mobil Oil Com., 364 Pa. Super. 275, 528 A.2d 155 (1987) (same); Castner, supra (PMPA bars oil company franchisee from maintaining state law cause of action). In fact, plaintiffs, in their most recent complaint, now concede federal court has exclusive jurisdiction to entertain causes of action based on alleged violations of PMPA. Plaintiffs' Second Amended Complaint, ¶ 53. 10. Even if state law were not preempted, there were no violations of Pennsylvania law by in any respect. See, e.g., Witmer v. Exxon Corm, 394 A.2d 1276 (Pa. Super. 1978) (Gasoline Act does not prevent lessors from raising service station rentals and indeed provides lessor may terminate a lease for nonpayment of rent pursuant to 73 P.S. § 202-3(b)(6)). 4 11. In the alternative, to the extent there were any viable state law causes of action against Texaco / Star, those causes of action were indeed preserved by defendant McKnight's filing of the 1998 Action. If plaintiffs' claims were actionable! under Pennsylvania law and were not preempted by the PMPA, under 42 Pa. C.S.A. § 5525 and pursuant to the "gist of the action" doctrine, the applicable statute of limitations for these claims would be four years. Bohler- Uddeholm America Inc. v. Ellwood Group, Inc., 247 F.3d 79, 105 (3d Cir. 2001); Bash v. Bell Tel. Co. of Pennsylvania, 411 Pa. Super. 347, 601 A.2d 825, 829 (Pa. Super. 1992). 12. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying action. Under both the PMPA and applicable Pennsylvania law, punitive damages are not available for mere negligence, and instead are proper only when a party's actions are of such an "outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct," and are awarded to punish that person for such conduct. 15 U.S.C. § 2805; See also SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991). Outrageous conduct is an "act done with a bad motive or with reckless indifference to the interests of others." Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743, 745 (1980) (quoting Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157 (1970)). Here, defendants have failed to assert any such outrageous conduct on behalf of defendants, and certainly none directed at plaintiffs. See Exhibit "A;" see also Ferguson n v. Liefj, Cabraser Heimann & Bernstein. LLP, 30 Cal.4`' 1037, 69 P.3d 965, 135 Ca1.Rptr.2d 46 (Cal. 2003) (after canvassing case law throughout the United States, concludes that, consistent with the ALI's recent Restatement (Third) of the Law Governing Lawyers, legal malpractice plaintiffs may not recover lost punitive damages as compensatory damages). 13. Defendants McKnight and the law firm preliminarily object to plaintiffs' second amended complaint for attempting to characterize Star as a Texaco subsidiary, when, in fact, it was a New York State joint-venture between a Texaco subsidiary and a Saudi Arabian oil company which took over Texaco operations in the East Coast: while, at the same time, another new entity took over Texaco operations in the West Coast. 14. Finally, defendants McKnight and the law firm preliminarily object to plaintiffs' second amended complaint as being vague and unspecific, in violation of Pennsylvania Rule of Civil Procedure 1019(a) which requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a). Plaintiffs fail to set forth the specific details of the application made to obtain the consent to transfer / assign the franchise rights and failed to attach or set forth the terms of their contract with Texaco / Star. See Exhibit "A." The lack of specificity of a plaintiff's pleadings is properly raised by way of preliminary objection. Pa.R.Civ.P. 1028(a)(3); Connor v. Allegheny General Hosn, 501 Pa. 306, 461 A.2d 600 (1983). A complaint must do more than give the defendants notice of what the plaintiff s claim is and the grounds upon which it rests: "It should formulate the issues by fully summarizing the material facts." General State Authority v. The Sutter Corp., 24 Pa. Commw. 391, 356 A.2d 377 (1976); Connor v. Allegheny Gener al Hosn•, 501 Pa. 306, 461 A.2d 600 (1983). The second amended complaint makes unsupported references to Pennsylvania law and to applicable statute of limitations deadlines. See, e.g., Plaintiffs' Second Amended Complaint, ¶¶ 40-42, 49-61. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand that plaintiffs' Second Amended Complaint be dismissed with prejudice. RESPECTFULLY SUBMITTED, Jeffrey B. Albert Thomas E. Mellon, III PA I.D. No.s 098:59 / 81631 MCKISSOCK & HOFFMAN, P.C. 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: October 3, 2003 7 Exhibit A GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibsonAgibperk.com kttomey For Plaintiffs CHARLESHOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded IRWIN MCKNIGHT & HUGHES Defendants ) SECOND AMENDED COMPLAINT 1. Plaintiffs are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Sherman Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinal3er sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West Pontfert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was an employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiffs herein were the owners of a Texaco Gasoline Station franchise located at 10th & Lowther Streets, in Camp Hill, Pennsylvania. 7. Plaintiffs had owned the subject matter Texaco franchise since May 1992. 8. At all relevant times the Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiffs herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises" 9. At all times relevant Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 10. At all relevant times Star Enterprises was the alter ego of Texaco Oil Company. 11. As part of their franchise agreement with Star Enterprises/Texaco, Plaintiff s did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. 12. Upon information and belief Defendant McKnight still has in his possession all of Plaintiffs Agreements with Star Enterprises/Texaco in that these documents were given to Defendant by the Plaintiffs herein. 13. Notwithstanding Plaintiff's requests to do so, Defendant McKnight refuses to return to plaintiffs all of the aforesaid Star Enterprises/Texaco documents. 14. On or about Nov 1995, Plaintiffs decided to retire from the gasoline service station business and began looking for potential pin-chasers of Plaintiff's Star Enterprises/Texaco franchise. 15. On or about Dec 1995, Plaintiffs were presented with offer to purchase their Star Enterprises/Texaco franchise. 16. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 17. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Star Enterprises/Texaco and had a new lease for the next 3 years just awaiting execution by Plaintiffs. 18. The new 3 year lease provided for rent of $2700 the 1" year, $2900 the 2nd year and $3100 the 3`d year. - 19. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs monthly rent for the Star Enterprises/Texaco station was $2,500 per month. 20. Both Plaintiff's lease and franchise agreement with. Star Enterprises/Texaco were assignable. 21. It was always understood between Plaintiffs and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Star Enterprises/Texaco 3 and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 22. Plaintiff's franchise agreement with Star Enterprises/Texaco provided that Star Enterprises/Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld. 23. On or about March 1996, an employee of Star Enterprises/fexaco advised Plaintiffs that Star Enterprises/Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad F'arooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. - 24. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 25. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiff s Star Enterprises/Texaco franchise. 26. As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiff s lost their sale to Mr. Muhammad Farooq in that I.W. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 27. As a result of losing their Star Enterprises/Texaco Franchise sale on or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiffs had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's 4 refusal to approve the franchise sale without an increase in monthly rent as above described. 28. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiffs had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under the federally enacted Petroleum Marketing Practices Act ["PMPA"] for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiffs proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. 29. Defendant McKnight advised that Star Enterprises/Texaco's refusal to extend Plaintiff s Lease to Mr. Muhammad Farooq as alleged above was a constructive refusal to renew Plaintiffs Texaco franchise in violation of the PMPA.. 30. On or about April 1996 Defendant McKnight agreed to represent Plaintiffs in connection with filing a-lawsuit against Star Enterprises/Texaco to advance the claims as described above. 31. Plaintiffs signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. 32. Subsequent to entering into the contingent fee agreement as described above, it became Plaintiffs perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. 33. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. 5 34. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting plaintiffs claims against star Enterprises/Texaco, Plaintiff's, made the decision to seek new counsel. 35. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. 36. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act [' PMPA" ], which governs in part rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. 37. The conduct of Star Enterprises/Texaco in refusing to extend the rental payments that were in force in Plaintiffs Agreement with Star Enterprises/Texaco to Mr. Muhammad Farooqq, the proposed purchaser of Plaintiffs franchise, constitutes a violation under subsection 2802 of Title 15 of the United States Code. 38. Due to Star Enterprises/Texaco's violation of Subsection 2802 of Title 15 of the United States Code, under Section 2805 of Title 15 of the United States Code Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment of Plaintiffs franchise was willful and/or malicious and in violation of the requirements imposed on Star Enterprises/Texaco under Section 2802 of Title 15. 39. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprisestrexa:o's racial discrimination in 6 seeking to curtail people of Indian/pakiswWSikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 40. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 41. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 42. In Plaintiff's meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight in either State or Federal Court within the one or two year periods described above. 43. In response to the initial Complaint filed by Plaintiff's herein, the Defendants filed Preliminary Objections. 44. Attached to the Defendant's Preliminary Objections was a Writ of Summons purportedly filed by the Defendant McKnight against an entity named as `Star Enterprise, a general partnership" 45. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons "on behalf of Plaintiffs". 46. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons on "August 4,1998". 7 47. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that the defendant named in the Writ is Plaintiff s "fianchisor". 48. The writ of summons filed by the Defendant McKnight as described above was never served against Star Enterprises. 49. Under Pennsylvania law, failure to serve a Writ of Summons with 30 days of its being issued will not toll the running of any applicable Statute of Limitation. 50. Since Defendant McKnight never reissued the Writ of Summons within 30 days of the Writ being filed, the Writ expired. 51.On or about August 27, 2003 Defendant filed Preliminary Objections to Plaintiff s First Amended Complaint. 52. In paragraph eight of Defendants' Preliminary Objections, Defendants allege that Federal Court has exclusive jurisdiction to entertain causes of action based on alleged violations of the PMPA. 53. Federal Court has exclusive jurisdiction to enterta'm causes of action based on alleged violations of the PMPA. 54. At no time did Defendant McKnight file a Complaint in federal court 55. In order to toll and/or be within the one year Statute of Limitations against Star Enterprises/Texaco under the PMPA, Defendant McKnight would have had to file a Complaint in United States District Court on or before April 1, 1997. 56. Had Defendant McKnight timely filed an action in Federal Court on or before April 1, 1997, Plaintiff s state law claims would have been preserved as well. 57. In order to toll and/or be within the two year Statute of Limitations against Star Enterprises/Texaco under applicable Pennsylvania franchise law not pre-empted by the 8 PMPA, Defendant McKnight would have had to file a Writ of Summons and/or Complaint on or before April 1, 1998. 58. The Writ of Summons filed by Defendant McKnight on August 4, 1998 was filed outside both the aforementioned one and two year limitations periods. 59. Even if the Writ Defendant McKnight filed was filed. within either the one or two year limitations period said Writ would not have preserved Plaintiffs' cause of action under the PMPA in that this action was required to be filed in Federal Court. 60. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not have preserved Plaintiffs' non PMPA causes of action under state law in that McKnight took no steps to have the Writ personally served upon Star Enterprise within 30 days of filing same. 61. Notwithstanding the language in the Writ filed by McKnight that the Sheriff should serve same, no sheriff service was made upon Star Enterprise. 62. Upon information and belief, Defendant never paid for Sheriff Service of the Writ. 63. Under Pennsylvania Law, a Sheriff cannot effect personal service of a Writ of Summons upon an out of State Defendant such as Star Enterprise. 64. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PMPA Plaintiffs would have prevailed in said litigation in that the refusal to extend Plaintiffs lease terms to Mr. Muhammad Farooq as alleged above, was a constructive refusal to renew Plaintiffs Texaco :Franchise in violation of the PMPA. 9 65. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PMPA and/or state law as defined above within the one and two year periods Plaintiffs would have obtained punitive damages well in excess of $500,000 and an award of attorneys fees given Star Enterprises/Texaco's outrageous conduct in refusing to allow a person of Indian/Pakistani/ Sikh ethnicity from owning a Star Enterprises/Texaco franchise. COUNTI 66. Plaintiffs repeat and re-allege paragraphs 1 through 65 above as if the same were set forth at length herein. 67. As Plaintiffs' attorney, Defendant McKnight owed plaintiffs the duty to competently represent plaintiffs' interests in timely prosecuting an action against Star Enterprises/Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 68. Defendant McKnight breached the duty he owed Plaintiffs and deviated from the applicable standard of care by a similarly situated litigation attorney by Defendant's failure to file a timely action against Star Enterprises/Texaco in Federal Court on or before April 1, 1997 and or April 1, 1998, so as to preserve plaintiffs' state and/or federal causes of action as described above. 69. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Star Enterprises/Texaco, Plaintiffs would have recovered substantial compensatory and punitive damages well in excess of $500,000. 70. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs can not get another lawyer to 10 proceed against Star Enterprises/Texaco on any financial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 71. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Star Enterprises/Texaco for the loss of the sales price to Mr. Muhammad Farooq. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNT U 72. Plaintiffs repeat and re-allege paragraphs 1 through 71 above as if the same were set forth at length herein. 73. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant McKnight as described in Count I above. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. GIBSON & PERKINS P.C. 11 CERTIFICATE OF SERVICF; I hereby certify that on this 15th day of September 2003, I served a true and correct copy of the Plaintiffs' Second Amended Complaint, upon the following by Electronic Mail in PDF format: Jeffrey B. Albert, Esquire McKissock & Hoffinan 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 jalber?mckhofcom - PERKINS P.C. Suite 03 200 ast State 610.565.1708 kevingibson@gibperk:.com 12 VERMCATION I, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that the facts set forth in the foregoing Second Amended Complaint are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Complaint Upon Plaintiff's availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. 13 Exhibit B CHARLES C. HOLLENBACH and DIAINNA L. MORROW, Plaintiffs V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. d -,,97 /00 STAR ENTERPRISE, a general partnership, JURY TRIAL. DEMANDED Defendant. PRAECTPE FOR A WRIT OF SUMMONS TO: CURTIS R. LONG, PROTHONOTARY Please enter my appearance on behalf of the plaintiffs, Charles C. HoilenbacEand-50indret L. Morrow. Please issue a Writ of Summons upon the defendant, Star Fnterpris -*, ?Iea? ha the Sheriff serve the defendant at the following address: 1 . a .? ?.rl STAR-ENTERPRISE 303 Fellowship Road ' 4 CS-18 Moorestown, NJ 08057 Rcspectfiilly, submitted Date: August 4,1998 By: HUGHES 60 Wesepomfret Svi.er Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No: 25476 Attorney for Plaintiffs, Charles C. Holienbach and Dianna L. Morrow VERIFICATION I, THOMAS E. MELLON, III, ESQUIRE, hereby verify that I am authorized to make this verification and that the facts set forth in the foregoing Preliminary Objections to Plaintiffs' Second Amended Complaint are true and correct to the best of my knowledge, information and belief. This verification is made subject to 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. Thomas E;. ellon, Dated: October 3, 2003 CERTIFICATE OF SERVICE I, THOMAS E. MELLON, III, ESQUIRE hereby certify that on October 3, 2003, a true and correct copy of the foregoing Preliminary Objections to Plaintiffs' Second Amended Complaint was delivered by United States First-Class mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBSON & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Jeffrey B. MAlbert, quire s-? Thomas E. Mellon, III, Esquire Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: October 3, 2003 r? ?> n .t, I` i r, „? 'J 17 Z!2?- oS_& CERTIFICATE OF SERVICE I, Thomas E. Mellon, III, Esquire hereby certify that on October 10, 2003, a true and correct copy of the Argument Praecipe for Defendants, Defendants' Preliminary Objections to Plaintiffs' Second Amended Complaint was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBsoN & PERxnvs, P.C. 200 East State Street, Suite 105 Media, PA 19063 9 Jeffrey B. Albert, Asquire Thomas E. Mellon, III, Esquire Attorney for Defendants Dated: October 10, 2003 C.,"' C' , r,., :...? ,5 TJ ? A=' R!?; c l ?_ . ? .: ; f--i... . ?:, ..,? c (_.. ..., ?] '` C "+7 %r .! •L? .? -J (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. McIGSSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Thomas E. Mellon, III, Esquire Pa. I.D. No. 81631 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 ATTORNEYS FOR DEFENDANTS Marcus McKnight, Esquire and Irwin McKnight & Hughes CHARLES HOLLENBACH and DIANNA L. HOLLENBACH V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES COURT OF' COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded 1. State matter to be argued (i.e., plaintiffs motion or new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff(s): Kevin William Gibson, Esquire GmsoN & PERKiNs, P.C. 200 East State Street, Suite 105 Media, PA 19063 (b) for defendant(s): c Jeffrey B. Albert, Esquire McKISSOCK & HOFFMAN, P.C. 1700 Market Street, Suite 3000 Philadelphia, 13A 19103 R <I ?.J ,s a5 c? rt tilt fT: { =v 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: October 3, 2003 l? I ?' c : rr5 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 ffaxl For Plaintiffs CHARLES HOLLENBACH AND I DIANNA L. HOLD ENBACH Pla#ntiff V. MARCUS McKN?GHT, ESQ. AND IRWIN MCKNIG$T & HUGHES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded L - 5. It is admitt Id that these are the relevant facts and causes of action pled by Plaintiffs in their S?cond Amended Complaint. 6. It is denied that a "civil action" was filed as alleged. To the contrary, a bare Writ of Summons was filed upon which no service was made and thus the Writ expired as a matter of law. Thu there was and/or is no pending action. See Witherspoon v City of Philadelphia, 768 2d 1079 (Pa. 2001). It is also denied that Star Enterprises is a "co- franchisor" [sic] as alleged. 7. This is an improper preliminary objection that would entitle Plaintiffs to file preliminary objections of their own. However and so as not to get bogged down in a procedural battle, Plaintiffs respond by stating that the averments that Texaco/Star violated the PMPA are clearly set forth in paragraphs 35 of the Complaint. Failure to consent to the assignment of a gasoline station franchise can violate both the PMPA and can also be violative of state law and a claim for violation of both the PMPA and state law can be advanced in a federally filed action. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Ga r v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 8. It is denied that there can be no federal claim under the PMPA for failure to approve an assignir ent of a gasoline station franchise in that failure to do so can be viewed as a PMPA sanctionable termination of the franchise. It is also denied that federal law preempts a stag based claim for the unreasonable lack of consent to an assignment of a franchise. See, on v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 85, ( . Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a W it of Summons if the litigation was without merit. 9. It is denied at federal law preempts a state based claim for the unreasonable lack of consent to an as}igmnent of a franchise. Had Defendant McKnight filed a PMPA based complaint th? federal court would have been able to adjudicate all state law claims as well. See, Han?on v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 10. Plaintiff has never contended that Texaco did not have the right to raise rent. Plaintiff's state law claim is that Texaco was attempting to increase an agreed to rent as a basis for consenting to an assignment of that lease which is a simple state law breach of contract action that could have been prosecuted in either state or federal court had the Defendant 11. Denied The (Defendant failed to preserve the state law claims by his failure to timely and properlyl serve the Writ of Summons he filed in this Court. Witherspoon v 768 A 2d 1079 (Pa. 2001) specifically provides that a plaintiff must take steps to serve ? Defendant with service of process within 30 days of filing a Writ of Summons in order 0 preserve an action from being within an applicable statute of limitations. This was not done by the Defendant herein. 12. Denied. PlaiMntiff would have been awarded punitive damages in that Texaco's attempts to deprive minorities from acquiring Texaco g franchises just because of their creed and/or ethnic 13. This objecti stricken. It is also s 14. It i enied GIBSPERh is outrageous conduct. is outside of the four corners of the Complaint and must be to the causes of action being pled. the Complaint is vague. P.C. BY: KVVIN WILL CERTIFICATE OF SERVICE t on this 29th day of October 2003, I served a true and correct I hereby certify t' *I b Electronic spy the following by of the Plaintiffs' Answer to Preliminary objections, upon Mail in PDF format: Jeffrey B. Albert, Esgm e McKissock & Hoffma" 3000 1700 Market Street, Su Philadelphia, PA 191013-3930 jalbert@mckhof com I GIBSON & PERKINS P.C. Suite l0 a Street 200 East Media PA 19063 610.565.1708 erk.com kevingibson@gibP o ? s z t n ?g -?r`' sue? C o u? ? 5. Charles Hollenbach and Dianna L. Hollenbach V Marcus McKnight, Esquire and Irwin McKnight & Hughes IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-0256 CIVIL TERM ORDER OF COURT AND NOW, December 11, 2003, by agreement of counsel, the above-captioned matter is continued from the December 3, 2003 Argument Court list. Counsel is directed to relist the case when ready. ?$evin William Gibson, Esquire For the Plaintiff /Jeffrey B. Albert, Esquire 1 For the Defendant Court Administrator ]d By the Court, Geo e . Ho er, P.J. !A-II-43 ;L E?,? t 1 ;i3U ?6 `v . 30 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted m duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. McKISSOCK & ROFFMAN, P.C. Jeffrey B. Albert, Esquire Pa. I.D. No. 09859 Thomas E. Mellon, III, Esquire Pa. I.D. No. 81631 1700 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 246-2100 ATTORNEYS FOR DEFENDANTS Marcus McKnight, Esquire and Irwin McKnight & Hughes CHARLES HOLLENBACH and DIANNA L. HOLLENBACH V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded 1. State matter to be argued (i.e., plaintiff s motion or new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT 2. Identify counsel who will argue case: Kevin William Gibson, Esquire (a) for plaintiff(s): GIBSON & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 (b) for defendant(s): Jeffrey B. Albert, Esquire Thomas E. Mellon, Esquire McKISSOCK & HOFFMAN, P.C. 1818 Market Street, 13`h Floor Philadelphia, PA 19103 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: January 14, 2004 CERTIFICATE OF SERVICE I, Thomas E. Mellon, III, Esquire hereby certify that on January 14, 2004, a true and correct copy of the Argument Praecipe for Defendants, Preliminary Objections to Plaintiffs' Second Amended Complaint was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBsoN & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Jeffrey B. Albert, Esquire Thomas E. Mellon, III, Esquire Attorney for Defendants Dated: January 14, 2004 C7 ° c+ c". f .T- z C ) r < CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs V. MARCUS McKNIGHT, ESQUIRE and IRWIN, McKNIGHT & HUGHES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-256 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 29 h day of March, 2004, upon consideration of Defendants' preliminary objections to Plaintiffs' second amended complaint, and it appearing that Plaintiffs did not file a second amended complaint, the preliminary objections are stricken. BY THE COURT, Wesley 01 Jr., J. ?Kevin William Gibson, Esq. 200 East State Street Suite 105 Media, PA 19063 Attorney for Plaintiffs ?Jeffrey B. Albert, Esq. Edwin A.D. Schwartz, Esq. 1700 Market Street Suite 3000 Philadelphia, PA 19103 Attorneys for Defendant 7 Z 03.30-CY :rc IV, C I :01 ',IV Oi g14 qoZ n4l do ??1i-i0-Cl3i!? GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS MCKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES Defendants For Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded SECOND AMENDED COMPLAINT 1. Plaintiff's are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Shermans Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinafter sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was an employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiffs herein were the owners of a Texaco Gasoline Station franchise located at l0a' & Lowther Streets, in Camp Hill, Pennsylvania. 7. Plaintiff's had owned the subject matter Texaco franchise since May 1992. 8. At all relevant times the Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiff's herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". 9. At all times relevant Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 10. At all relevant times Star Enterprises was the alter ego of Texaco Oil Company. 11. As part of their franchise agreement with Star Enterprises/Texaco, Plaintiff's did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. 12. Upon information and belief Defendant McKnight still has in his possession all of Plaintiffs Agreements with Star Enterprises/Texaco in that these documents were given to Defendant by the Plaintiffs herein. 2 13. Notwithstanding Plaintiffs requests to do so, Defendant McKnight refuses to return to Plaintiffs all of the aforesaid Star Enterprises/Texaco documents. 14. On or about Nov 1995, Plaintiffs decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs Star Enterprises/Texaco franchise. 15. On or about Dec 1995, Plaintiff's were presented with offer to purchase their Star Enterprises/Texaco franchise. 16. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 17. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Star Enterprises/Texaco and had a new lease for the next 3 years just awaiting execution by Plaintiffs. 18. The new 3 year lease provided for rent of $2700 the 1 It year, $2900 the 2nd year and $3100 the 3`d year. 19. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs monthly rent for the Star Enterprises/Texaco station was $2,500 per month. 20. Both Plaintiffs lease and franchise agreement with Star Enterprises/Texaco were assignable. 21. It was always understood between Plaintiff's and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiff s existing lease with Star Enterprises/Texaco 3 and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 22. Plaintiff's franchise agreement with Star Enterprises/Texaco provided that Star Enterprises/Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld. 23. On or about March 1996, an employee of Sitar Enterprises/Texaco advised Plaintiff's that Star Enterprises/Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. 24. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 25. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiffs Star Enterprises/Texaco franchise. 26. As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiffs lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 27. As a result of losing their Star Enterprises/Texaco Franchise sale on or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiffs had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's 4 refusal to approve the franchise sale without an increase in monthly rent as above described. 28. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiff's had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under the federally enacted Petroleum Marketing Practices Act ["PMPA"] for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiffs proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indiang3akistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. 29. Defendant McKnight advised that Star Enterprises/Texaco's refusal to extend Plaintiff's Lease to Mr. Muhammad Farooq as alleged above was a constructive refusal to renew Plaintiff's Texaco franchise in violation of the PMPA. 30. On or about April 1996 Defendant McKnight agreed to represent Plaintiffs in connection with filing a lawsuit against Star Enterprises/Texaco to advance the claims as described above. 31. Plaintiff's signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. 32. Subsequent to entering into the contingent fee agreement as described above, it became Plaintiff's perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. 33. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiff's letters and telephone calls. 5 34. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiff's claims against Star Enterprises/Texaco, Plaintiffs made the decision to seek new counsel. 35. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. 36. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act ["PMPA"], which governs in part rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. 37. The conduct of Star Enterprises/Texaco in refusing to extend the rental payments that were in force in Plaintiff's Agreement with Star Enterprises/Texaco to Mr. Muhammad Farooqq, the proposed purchaser of Plaintiffs franchise, constitutes a violation under subsection 2802 of Title 15 of the United States Code. 38. Due to Star Enterprises/Texaco's violation of Subsection 2802 of Title 15 of the United States Code, under Section 2805 of Title 15 of the United States Code Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment of Plaintiff s franchise was willful and/or malicious and in violation of the requirements imposed on Star Enterprises/Texaco under Section 2802 of Title 15. 39. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprises/Texaco's racial discrimination in 6 seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 40. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 41. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 42. In Plaintiffs meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight in either State or Federal Court within the one or two year periods described above. 43. In response to the initial Complaint filed by Plaintiffs herein, the Defendants filed Preliminary Objections. 44. Attached to the Defendant's Preliminary Objections was a Writ of Summons purportedly filed by the Defendant McKnight against an entity named as `Star Enterprise, a general partnership". 45. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons "on behalf of Plaintiff s". 46. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons on "August 4, 1998". 7 47. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that the defendant named in the Writ is Plaintiffs "franchisor". 48. The Writ of Summons filed by the Defendant McKnight as described above was never served against Star Enterprises. 49. Under Pennsylvania law, failure to serve a Writ of Summons with 30 days of its being issued will not toll the running of any applicable Statute of Limitation. 50. Since Defendant McKnight never reissued the Writ of Summons within 30 days of the Writ being filed, the Writ expired. 51. On or about August 27, 2003 Defendant filed Preliminary Objections to Plaintiffs First Amended Complaint. 52. In paragraph eight of Defendants' Preliminary Objections, Defendants allege that Federal Court has exclusive jurisdiction to entertain causes of action based on alleged violations of the PMPA. 53. Federal Court has exclusive jurisdiction to entertain causes of action based on alleged violations of the PMPA. 54. At no time did Defendant McKnight file a Complaint in federal court 55. In order to toll and/or be within the one year Statute of Limitations against Star Enterprises/Texaco under the PMPA, Defendant McKnight would have had to file a Complaint in United States District Court on or before April 1, 1997. 56. Had Defendant McKnight timely filed an action in Federal Court on or before April 1, 1997, Plaintiffs state law claims would have been preserved as well. 57. In order to toll and/or be within the two year Statute of Limitations against Star Enterprises/Texaco under applicable Pennsylvania franchise law not pre-empted by the 8 PMPA, Defendant McKnight would have had to file a Writ of Summons and/or Complaint on or before April 1, 1998. 58. The Writ of Summons filed by Defendant McKnight on August 4, 1998 was filed outside both the aforementioned one and two year limitations periods. 59. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not have preserved Plaintiffs' cause of action under the PMPA in that this action was required to be filed in Federal Court. 60. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not have preserved Plaintiffs' non PMPA causes of action under state law in that McKnight took no steps to have the Writ personally served upon Star Enterprise within 30 days of filing same. 61. Notwithstanding the language in the Writ filed by McKnight that the Sheriff should serve same, no sheriff service was made upon Star Enterprise. 62. Upon information and belief, Defendant never paid for Sheriff Service of the Writ. 63. Under Pennsylvania Law, a Sheriff cannot effect personal service of a Writ of Summons upon an out of State Defendant such as Star Enterprise. 64. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PMPA Plaintiffs would have prevailed in said litigation in that the refusal to extend Plaintiffs lease terms to Mr. Muharnmad Farooq as alleged above, was a constructive refusal to renew Plaintiffs Texaco franchise in violation of the PMPA. 9 65. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PMPA and/or state law as defined above within the one and two year periods Plaintiffs would have obtained punitive damages well in excess of $500,000 and an award of attorneys fees given Star Enterprises/Texaco's outrageous conduct in refusing to allow a person of Indian/Pakistani/ Sikh ethnicity from owning a Star Enterprises/Texaco franchise. COUNTI 66. Plaintiffs repeat and re-allege paragraphs 1 through 65 above as if the same were set forth at length herein. 67. As Plaintiffs' attorney, Defendant McKnight owed Plaintiffs the duty to competently represent Plaintiffs' interests in timely prosecuting an action against Star Enterprises/Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 68. Defendant McKnight breached the duty he owed Plaintiffs and deviated from the applicable standard of care by a similarly situated litigation attorney by Defendant's failure to file a timely action against Star Enterprises/Texaco in Federal Court on or before April 1, 1997 and or April 1, 1998, so as to preserve Plaintiffs' state and/or federal causes of action as described above. 69. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Star Enterprises/Texaco, Plaintiffs would have recovered substantial compensatory and punitive damages well in excess of $500,000. 70. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs can not get another lawyer to 10 proceed against Star Enterprises/Texaco on any fmancial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 71. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Star Enterprises/Texaco for the loss of the sales price to Mr. Muhammad Farooq. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNT II 72. Plaintiffs repeat and re-allege paragraphs 1 through 71 above as if the same were set forth at length herein. 73. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant MoKnight as described in Count I above. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. 11 VERIFICATION I, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that the facts set forth in the foregoing Second Amended Complaint are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Complaint. Upon Plaintiffs availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsifi( 13 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of August 2004, I served a true and correct copy of the Plaintiffs' Second Amended Complaint, in PDF format: Jeffrey B. Albert, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 jalbert@mckhof.com upon the following by Electronic Mail 12 kevingibson@gibperk.c:om r c? ? x . ?" _. , ? ° ' m C -n 17 ? c? O ? ?C? T -; ??_ ? - -n r'? s'? r.. '?. :T h ) C ?t . .. ;?. Cd Y ..4 4'1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. McKISSOCK & HOFFMAN, P.C. ATTORNEYS FOR DEFENDANTS Jeffrey B. Albert, Esquire Marcus McKnight, Esquire and Pa. I.D. No. 09859 Irwin McKnight & Hughes Richard T. Bobbe, III, Esquire Pa. I.D. No. 84553 1818 Market Street, 13`h Floor Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded 1. State matter to be argued (i.e., plaintiff s motion or new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT 2. Identify counsel who will argue case: Kevin William Gibson, Esquire (a) for plaintiff(s): GiBSON & PEIMINS, P.C. 200 East State; Street, Suite 105 Media, PA 19063 (b) for defendant(s): Jeffrey B. Albert, Esquire Richard T. Bobbe, III, Esquire MCKISSOCK. & HOFFMAN, P.C. 1818 Market Street, 13`h Floor Philadelphia, PA 19103 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 2, 2005 Dated: December 13, 2004 -- Attorney for Defendant CERTIFICATE OF SERVICE I, Richard T. Bobbe, III, Esquire hereby certify that on December 13, 2004, a true and correct copy of the Argument Praecipe for Defendants, Preliminary Objections to Plaintiffs' Second Amended Complaint was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBsoN & PERK Ns, P.C. 200 East State Street, Suite 105 Media, PA 19063 Jeffrey B. Albert, Esquire Richard T. Bobbe, III, Esquire Attorney for Defendants Dated: December 13, 2004 4 ?,1 "t MCKISSOCK & HOFFMAN, P.C. Jeffrey B. Albert, Esquire Richard T. Bobbe III, Esquire PA I.D. No.s 09859 / 84553 1818 Market Street, 13a' Floor Philadelphia, PA 19103 (215) 246-2100 CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES, Defendants. ATTORNEYS FOR DEFENDANTS Marcus McKnight, Esquire and Irwin McKnight & Hughes COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes, by their attorney, Jeffrey B. Albert, Esquire, hereby enter the following preliminary objections to plaintiffs' Second Amended Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028 and Cumberland County Rule of Procedure 208-1, and set forth the following in support thereof: 1. This is a legal malpractice action against defendant Marcus McKnight, Esquire (hereinafter, "McKnight") (Count I) and, by operation of the doctrine of respondeat superior, against defendant law firm, Irwin McKnight & Hughes (hereinafter, "the law firm") (Count II). Plaintiffs' Second Amended Complaint, 1166-73. A copy of plaintiffs' Second Amended Complaint is attached hereto and marked as Exhibit "A." 2. According to plaintiffs, they retained defendant McKnight as their attorney to pursue a claim against Texaco Oil Company and Star Enterprises (hereinafter, "Texaco" and "Star," respectively) because Texaco and Star, as the co-franchisors, refused to consent to plaintiffs' attempted sale of their gasoline station franchise to Muhammad Farooq (hereinafter, "Farooq") - allegedly because Farooq was of "Indian / Pakistani / Sikh descent" - on the same terms as were then in effect for plaintiffs. Instead of a required a payment of $2,500 per month, Texaco / Star increased the monthly rent payment to $3,500, an amount which Farooq was apparently unwilling to pay. Plaintiffs' Second Amended Complaint, 1114-27. 3. Plaintiffs also allege that, because of the allegedly discriminatory actions by Texaco / Star directed at Farooq, they were unable to sell their gasoline station franchise to Mr. Farooq for $110,000. Plaintiffs' Second Amended Complaint, 11124-26. 4. Plaintiffs claim that they at one time had a cause of action against Texaco / Star under the federal Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801, et seq. (hereinafter, the "PMPA"), which, if pursued within one year of the date of the alleged breach of the franchise agreement, would have permitted plaintiffs to recover both cornpensatory as well as punitive damages against Texaco / Star. Plaintiffs' Second Amended Complaint, 1136-41. 5. Plaintiffs' second amended complaint alleges that defendants McKnight and the law firm took insufficient action on their behalf and that defendants McKnight and the law firm missed applicable statute of limitations filing deadlines. Plaintiffs' Second Amended Complaint, 1132-34, 42,48-65. 2 6. However, as the records of this Court evidence, and as this Court may take judicial notice of, a civil action was filed on August 4, 1998 (hereinafter, the "1998 Action") by defendant McKnight on behalf of the plaintiffs against co-franchisor Star. A copy of the Praecipe For A Writ of Summons against Star is attached hereto and marked as Exhibit "B." 7. There was never any federal cause of action available to plaintiffs against Texaco / Star in that Texaco / Star's conduct complied with the PMPA, as plaintiffs do not allege violations of the provisions of the PMPA in negotiating the ownership assignment, in raising the rental / franchise fees and in terminating the franchise relationship. See 15 U.S.C. §§ 2801, et seq. Further, as there was never any other federal cause of action available to plaintiffs against Texaco / Star, plaintiffs attempt to rely upon a theory of alleged federal law cause of action for "constructive refusal to renew." Plaintiffs' Second Amended Complaint, 129. Numerous gas station franchisee claims have been brought based upon some sort of federal "constructive" wrongdoing by franchisors and courts have consistently refused. to hold these claims actionable. See, e.g., Jet, Inc. v. Shell Oil Co., 2002 U.S. Dist. LEXIS 22951 (N.D. Ill., Nov. 22, 2002); Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846 (7th Cir. 2002). Although plaintiffs assert that the "lease and franchise agreement with Star Enterprise / Texaco were assignable," (Plaintiffs' Second Amended Complaint, 120), they later acknowledge that "Star Enterprises / Texaco had the right to consent to an assignment of the franchise and lease agreements but that said consent could not be unreasonably withheld." Plaintiffs' Second Amended Complaint, 122. As Mikeron, Inc. v. Exxon Co., U.S.A., 264 F. Supp.2d 268 (D. Md. 2003), makes clear, absent a requirement that the franchisor approve assignment by a franchise, there is no viable claim under federal law for refusing consent to an assignment. See also Bill Call Ford v. Ford Motor Co., 830 F. Supp. 1053 (N.D. Ohio 1993). Federal law does not provide any rights to a third-party, such as a proposed assignee. Famaam v. Atlantic Richfield, 2002 Cal. App. Unpub. LEXIS 1954 (Cal. Ct. App., June 7, 2002) (non- precedential). Further, as held in Glenn v. Exxon Co., U.S.A., 801 F. Supp. 1290, 1296 n. 4 (D. Del. 1992), federal law preempts claims involving consent to assign franchise rights beyond the term of the existing franchise from being pursued under state law. See generally, Castner v. Exxon Co., 50 D.&C.3d 541 (C.P. Bucks Cty. 1989) (federal law preempts claims concerning issues concerning renewal of gasoline dealer franchises). 9. In addition to never having any viable federal cause of action, at no time ever did plaintiffs have a viable claim against Texaco / Star under Pennsylvania state law, including the Gasoline, Petroleum Products and Motor Vehicle Accessories Act, 73 P.S. §§ 202-1, et seq. (hereinafter, the "Gasoline Act"), in that any such claim was preempted by federal law. Amoco Oil Co. v. Burns, 496 Pa. 336, 437 A.2d 381 (1981) (PMPA supersedes and preempts any state statute covering the same subject manner, including the Gasoline Act); Johnson v. Mobil Oil Corp., 364 Pa. Super. 275, 528 A.2d 155 (1987) (same); Castner, supra (PMPA bars oil company franchisee from maintaining state law cause of action). In fact, plaintiffs, in their most recent complaint, now concede federal court has exclusive jurisdiction to entertain causes of action based on alleged violations of PMPA. Plaintiffs' Second Amended Complaint, 153. 10. Even if state law were not preempted, there were no violations of Pennsylvania law by in any respect. See, e.g., Witmer v. Exxon Corp., 394 A..2d 1276 (Pa. Super. 1978) (Gasoline Act does not prevent lessors from raising service station rentals and indeed provides lessor may terminate a lease for nonpayment of rent pursuant to 73 P.S. § 202-3(b)(6)). 4 11. In the alternative, to the extent there were any viable state law causes of action against Texaco / Star, those causes of action were indeed preserved by defendant McKnight's filing of the 1998 Action. If plaintiffs' claims were actionable Under Pennsylvania law and were not preempted by the PMPA, under 42 Pa. C.S.A. § 5525 and pursuant to the "gist of the action" doctrine, the applicable statute of limitations for these claims would be four years. Bohler- Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 105 (3d Cir. 2001); Bash v. Bell Tel. Co. of Pennsylvania, 411 Pa. Super. 347, 601 A.2d 825, 829 (Pa. Super. 1992). 12. In the further alternative, plaintiffs have no claim in this action for any punitive damages they would have sought to recover in any underlying action. Under both the PMPA and applicable Pennsylvania law, punitive damages are not available for mere negligence, and instead are proper only when a party's actions are of such an "outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct," and are awarded to punish that person for such conduct. 15 U.S.C. § 2805; See also SHV Coal, Inc, v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991). Outrageous conduct is an "act done with a bad motive or with reckless indifference to the interests of others." Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743, 745 (1980) (quoting Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157 (1970)). Here, defendants have failed to assert any such outrageous conduct on behalf of defendants, and certainly none directed at plaintiffs. See Exhibit "A;" see also Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP, 30 Cal.4th 1037, 69 P.3d 965, 135 Ca1.Rptr.2d 46 (Cal. 2003) (after canvassing case law throughout the United States, concludes that, consistent with the ALI's recent Restatement (Third) of the Law Governing Lawyers, legal malpractice plaintiffs may not recover lost punitive damages as compensatory damages). 5 13. Defendants McKnight and the law firm preliminarily object to plaintiffs' second amended complaint for attempting to characterize Star as a Texaco subsidiary, when, in fact, it was a New York State joint-venture between a Texaco subsidiary and a Saudi Arabian oil company which took over Texaco operations in the East Coast while, at the same time, another new entity took over Texaco operations in the West Coast. 14. Finally, defendants McKnight and the law firm preliminarily object to plaintiffs' second amended complaint as being vague and unspecific, in violation of Pennsylvania Rule of Civil Procedure 1019(a) which requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a). Plaintiffs fail to set forth the specific details of the application made to obtain the consent to transfer / assign the franchise rights and failed to attach or set forth the terms of their contract with Texaco / Star. See Exhibit "A." The lack of specificity of a plaintiff's pleadings is properly raised by way of preliminary objection. Pa.R.Civ.P. 1028(a)(3); Connor v. Allegheny General Hosp., 501 Pa. 306, 461 A.2d 600 (1983). A complaint must do more than give the defendants notice of what the plaintiff's claim is and the grounds upon which it rests: "It should formulate the issues by fully summarizing the material facts." General State Authority v. The Sutter Corp., 24 Pa. Commw. 391, 356 A.2d 377 (1976); Connor v. Allegheny General Hosp., 501 Pa. 306, 461 A.2d 600 (1983). The second amended complaint makes unsupported references to Pennsylvania law and to applicable statute of limitations deadlines. See, e.g., Plaintiffs' Second Amended Complaint, 1140-42, 49-61. 6 WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand that plaintiffs' Second Amended Complaint be dismissed with prejudice. RESPECTFULLY SUBNETTED, f Jeffrey B. Albert Richard T. Bobbe III PA I.D. No.s 09859 / 84553 MCKiSSOCK & HOFFMAN, P.C. 1818 Market Street, 13`h Floor Philadelphia, PA 19103 (215) 246-2100 Attorneys for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes Dated: December 13, 2004 7 CERTIFICATE OF SERVICE, I, Richard T. Bobbe, III, Esquire hereby certify that on December 13, 2004, a true and correct copy of Defendants Preliminary Objections to Plaintiffs' Second Amended Complaint was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire G soN & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Jeffrey B. Albert, Esquire Richard T. Bobbe, III, Esquire Attorney for Defendants Dated: December 13, 2004 Exhibit A GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevinaibsonC7a,gbperk.com Attomey For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ AND IRWIN MCKNIGHT & HUGHES Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded - SECOND AMENDED COMPLAn4T 1. Plaintiffs are Charles Hollenbach & Dianna Hollenbach who reside at 112 Sherby Lane, Sherman Dale, PA 17090. 2. The Defendant Marcus McKnight is a duly licensed attorney by the Commonwealth of Pennsylvania having his principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 3. The Defendant Irwin McKnight & Hughes [hereinafter sometimes called "Defendant Law Firm"] is believed to be a Pennsylvania general partnership engaged in the business of providing legal representation to the Pennsylvania consuming public having its principle place of business located at 60 West Pomfert Street Carlisle Pennsylvania 17013. 4. At all times relevant, the Defendant McKnight was ail employee and/or partner of the Defendant Law Firm. 5. At all times relevant to the events complained of below, the Defendant McKnight was acting in the scope of his employment as a partner and/or employee of the Defendant Law Firm. 6. On or about May, 1996 the Plaintiff's herein were the owners of a Texaco Gasoline Station franchise located at 10`h & Lowther Streets, in Camp Hill, Pennsylvania. 7. Plaintiff's had owned the subject matter Texaco franchise since May 1992. 8. At all relevant times the Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiffs herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". 9. At all times relevant Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 10. At all relevant times Star Enterprises was the alter ego of Texaco Oil Company. 11. As part of their franchise agreement with Star Enterprises/Texacc, Plaintiff's did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. 12. Upon information and belief Defendant McKnight still has in his possession all of Plaintiff's Agreements with Star Enterprises/Texaco in that these documents were given to Defendant by the Plaintiffs herein. 2 13. Notwithstanding Plaintiff s requests to do so, Defendant McKnight refuses to return to Plaintiffs all of the aforesaid Star Enterprises/Texaco documents. 14. On or about Nov 1995, Plaintiff's decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs Star Enterprises/Texaco franchise. 15. On or about Dec 1995, Plaintiff's were presented with offer to purchase their Star Enterprises/Texaco franchise. 16. The proposed purchaser was Muhammad Farooq of Indian/Pakistani/Sikh descent. 17. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff had 1/2 year left on their lease with Star Fazterprises/Texaco and had a new lease for the next 3 years just awaiting execution by Plabztiffs. 18. The new 3 year lease provided for rent of $2700 the 1St year, $2900 the 2"d year and $3100 the 3d year. - 19. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiff's monthly rent for the Star Enterprises/Texacc station was $2,500 per month. 20. Both Plaintiff's lease and franchise agreement with Star Enterprises/Texaco were assignable. 21. It was always understood between Plaintiff's and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Star Enterprises/Texaco 3 and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 22. Plaintiffs franchise agreement with Star EnterpriseslTexaco provided that Star Enterprises/Texaco had the right to consent to an assignment: of the franchise and lease agreements but that said consent could not be unreasonably withheld. 23. On or about March 1996, an employee of Star Enterprises/Texaco advised Plaintiff's that Star Enterprises/Texaco would consent to the sale of Plaintiff's franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. 24. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental conliary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises 25. Mr. Muhammad Farooq had agreed to pay $110,000 plus the cost of inventory for Plaintiff's Star Enterprises/Texaco franchise. 26. As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiff's lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. 27. As a result of losing their Star Enterprises/Texaco Franchise sale on or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiff's had any legal recourse against Star EnterprisesJTexaco regarding Star Enterprises/Texaco's 4 refusal to approve the franchise sale without an increase in monthly rent as above described. 28. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiff's had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under the federally enacted Petroleum Marketing Practices Act ["PMPA"] for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiff's proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. 29. Defendant McKnight advised that Star Enterprises)Texaco's refusal to extend Plaintiffs Lease to Mr. Muhammad Farooq as alleged above was a constructive refusal to renew Plaintiff's Texaco franchise in violation of the PMPA. 30. On or about April 1996 Defendant McKnight agreed to represent Plaintiff's in connection with filing a-lawsuit against Star Enterprises/Texaco to advance the claims as described above. 31. Plaintiff s signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. 32. Subsequent to,entering into the contingent fee agreement as described above, it became Plaintiff's perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. 33. Subsequent to entering into the contingent fee agreement as described above, Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. 5 34. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiff's claims against Star Enterprises/Texaco, Plaintiff's made the decision to seek new counsel. 35. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wickes-Barre, PA 18703 who advised Plaintiffs that he would prosecute an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. 36. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act ["PMPA"], which governs in part rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. 37. The conduct of Star Enterprises/Texaco in refusing to extend the rental payments that were in force in Plaintiff's Agreement with Star Enterprises/Texaco to Mr. Muhammad Farooqq, the proposed purchaser of Plaintif.Fs franchise, constitutes a violation under subsection 2802 of Title 15 of the United States Code. 38. Due to Star Enterprises/Texaco's violation of Subsection 2802 of Title 15 of the United States Code, under Section 2805 of Title 15 of the United States Code Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment of Plaintiffs franchise was willful and/or malicious and in violation of the requirements imposed on Star Enterprises/Texaco under Section 2802 of Title 15. 39. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprises/Texaco's racial discrimination in 6 seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing the franchises was willful and malicious conduct within the context of PMPA. 40. However, to be entitled to punitive damages under the PMPA, a lawsuit must be initiated within one year of the breach of the franchise agreement. 41. In addition to PMPA Pennsylvania state law provides that if a franchisee proves that a franchisor improperly terminated the franchise relationship, the franchisee would be entitled to an award of attorneys fees and litigations costs, including the cost of expert witnesses so long as the breach of franchise case is initiated within two years of the franchise breach. 42. In Plaintiffs meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight in either State or Federal Court within the one or two year periods described above. 43. In response to the initial Complaint filed by Plaintiff's herein, the Defendants filed Preliminary Objections. 44. Attached to the Defendant's Preliminary Objections was a Writ of Summons purportedly filed by the Defendant McKnight against an entity named as `Star Enterprise, a general partnership". 45. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons "on behalf of Plaintiffs". 46. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that Defendant McKnight filed the Writ of Summons on "August 4,1998". 7 47. In paragraph 6 of the Defendant's Preliminary Objections the Defendant states that the defendant named in the Writ is Plaintiff s 'Tmchisor". 48. The Writ of Summons filed by the Defendant McKnight as described above was never served against Star Enterprises. 49. Under Pennsylvania law, failure to serve a Writ of Summons with 30 days of its being issued will not toll the running of any applicable Statute of Limitation. 50. Since Defendant McKnight never reissued the Writ of Summons within 30 days of the Writ being filed, the Writ expired. 51.On or about August 27, 2003 Defendant filed Preliminary Objections to Plaintiff's First Amended Complaint. 52. In paragraph eight of Defendants' Preliminary Objections, Defendants allege that Federal Court has exclusive jurisdiction to entertain causes of action based on alleged violations of the PMPA. 53. Federal Court has exclusive jurisdiction to entertain causes of action based on alleged violations of the PMPA. 54. At no time did Defendant McKnight file a Complaint in federal court 55. In order to toll and/or be within the one year Statute of Limitations against Star Enterprises/Texaco under the PMPA, Defendant McKnight would have had to file a Complaint in United States District Court on or before April 1, 1997. 56. Had Defendant McKnight timely filed an action in Federal Court on or before April 1, 1997, Plaintiffs state law claims would have been preserved as well. 57. In order to toll and/or be within the two year Statute of Limitations against Star Enterprises/Texaco under applicable Pennsylvania franchise law not pre-empted by the 8 PMPA, Defendant McKnight would have had to file a Writ of Summons and/or Complaint on or before April 1, 1998. 58. The Writ of Summons filed by Defendant McKnight on August 4, 1998 was filed outside both the aforementioned one and two year limitations periods. 59. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not have preserved Plaintiffs' cause of action under the PMPA in that this action was required to be filed in Federal Court. 60. Even if the Writ Defendant McKnight filed was filed within either the one or two year limitations period said Writ would not have preserved Plaintiffs' non PMPA causes of action under state law in that McKnight took no steps to have the Writ personally served upon Star Enterprise within 30 days of filing same. 61. Notwithstanding the language in the Writ filed by McKnight that the Sheriff should serve same, no sheriff service was made upon Star Enterprise. 62. Upon information and belief, Defendant never paid for Sheriff Service of the Writ. 63. Under Pennsylvania Law, a Sheriff cannot effect personal service of a Writ of Summons upon an out of State Defendant such as Star Enterprise. 64. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PMPA Plaintiffs would have prevailed in said litigation in that the refusal to extend Plaintiff's lease terms to Mr. Muharninad Farooq as alleged above, was a constructive refusal to renew Plaintiff's Texaco frFmchise in violation of the PMPA. 9 65. Plaintiffs believes, and therefore aver, that had litigation been filed against Star Enterprises/Texaco under PUPA and/or state law as defined above within the one and two year periods Plaintiff's would have obtained punitive dianages well in excess of $500,000 and an award of attorneys fees given Star Enterprises/Texaco's outrageous conduct in refusing to allow a person of Indian/Pakistang Sikh ethnicity from owning a Star Enterprises/Texaco franchise. COUNT I 66. Plaintiffs repeat and re-allege paragraphs 1 through 65 above as if the same were set forth at length herein. 67. As Plaintiffs' attorney, Defendant McKnight owed Plaintiffs the duty to competently represent Plaintiffs' interests in timely prosecuting an action against Star Enterprises/Texaco for the claims described above on Plaintiffs behalf, as would a similarly situated litigation attorney. 68. Defendant McKnight breached the duty he owed Plaintiffs and deviated from the applicable standard of care by a similarly situated litigation attorney by Defendant's failure to file a timely action against Star Enterprises/Texaco in Federal Court on or before April 1, 1997 and or April 1, 1998, so as to preserve Plaintiffs' state and/or federal causes of action as described above. 69. Plaintiffs believe, and therefore aver, that had Defendant McKnight timely filed an action against Star Enterprises/Texaco, Plaintiffs would leave recovered substantial compensatory and punitive damages well in excess of $500,000. 70. Plaintiffs have been further damaged by the fact that given the inability to recover punitive damages for the reasons described above, Plaintiffs cam not get another lawyer to 10 proceed against Star Enterprises/Texaco on any financial basis other than an hourly fee basis which is something Plaintiffs cannot afford. 71. As a result of Plaintiffs inability to procure a lawyer on any basis other than hourly, Plaintiffs, much to their great detriment and loss, must forgo a lawsuit to recover the compensatory damages they would have been able to recover against Star Enterprises/Texaco for the loss of the sales price to Mr. Muhammad Farooq. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. COUNT II 72. Plaintiffs repeat and re-allege paragraphs 1 through 71 above as if the same were set forth at length herein. 73. On the legal premise of Respondeat Superior, the Defendant Law Firm is liable for the negligent acts and omissions of the Defendant McKnight as described in Count I above. WHEREFORE, Plaintiffs demands judgment in their favor, jointly and severally, for an amount in excess of $500,000, together with pre and post judgment interest, costs of suit and such other relief deemed appropriate by Judge or Jury. GIBSON & PERIGNS P.C. G BY: I4E%R WILLIAM 11 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September 200:3, I served a true and correct copy of the Plaintiffs' Second Amended Complaint, upon the following by Electronic Mail in PDF format: Jeffrey B. Albert, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 jaibert@mckhof.com - PERKINS P.C. BY: LINN ILL I GIBSON Suit200 S 65, Med 610.565.1708 kevingibson@gibperk.com 12 VERIFICATION 1, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that the facts set forth in the foregoing Second Amended Complaint are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Complaint. Upon Plaintiffs availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. 13 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 101 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevin ibgi son(aibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. MARCUS McKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES Defendants No. 2003-256 Civil Term Jury Trial Demanded PLAINTIFFS' ANSWERS TO PRELIMINARY OBJECTIONS 1. - 5. It is admitted that these are the relevant facts and causes of action pled by Plaintiffs in their Second Amended Complaint. 6. It is denied that a "civil action" was filed as alleged. To the contrary, a bare Writ of Summons was filed upon which no service was made and thus the Writ expired as a matter of law. Thus there was and/or is no pending action. Sere Witherspoon v City of Philadelphia, 768 A2d 1079 (Pa. 2001). It is also denied that Star Enterprises is a "co- franchisor" [sic] as alleged. 7. This is an improper preliminary objection that would entitle Plaintiffs to file preliminary objections of their own. However and so as not to get bogged down in a procedural battle, Plaintiffs respond by stating that the averinents that Texaco/Star violated the PMPA are clearly set forth in paragraphs 35 of fhe Complaint. Failure to consent to the assignment of a gasoline station franchise can violate both the PMPA and can also be violative of state law and a claim for violation of both the PMPA and state law can be advanced in a federally filed action. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1.982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 8. It is denied that there can be no federal claim under the PMPA for failure to approve an assignment of a gasoline station franchise in that failure to do so can be viewed as a PMPA sanctionable termination of the franchise, It is also denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 9. It is denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. Had Defendant McKnight filed a PMPA based complaint the federal court would have been able to adjudicate all state law claims as well. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 10. Plaintiff has never contended that Texaco did not have the right to raise rent. Plaintiff's state law claim is that Texaco was attempting to increase an agreed to rent as a basis for consenting to an assignment of that lease which is a. simple state law breach of contract action that could have been prosecuted in either state or federal court had the Defendant timely filed and served such an action. 11. Denied The Defendant failed to preserve the state law claims by his failure to timely and properly serve the Writ of Summons he filed in this Court. Witherspoon v City of Philadelphia, 768 A 2d 1079 (Pa. 2001) specifically provides that a plaintiff must take steps to serve a Defendant with service of process within 30 days of filing a Writ of Summons in order to preserve an action from being within an applicable statute of limitations. This was not done by the Defendant herein. 12. Denied. Plaintiff would have been awarded punitive damages in that Texaco's attempts to deprive minorities from acquiring Texaco g franchises just because of their creed and/or ethnic background is outrageous conduct. 13. This objection is outside of the four corners of the Complaint and must be stricken. It is also superfluous to the causes of action being pled. 14. Dghied that the Complaint is vague. It complies with Pa. RCP 1019. & PERKINS P.C. BY: TREVAN VMLIANI GIBS CERTIFICATE OF SERVICE I hereby certify that on this 15thth day of December 2004, I served a true and correct copy of the Plaintiffs' Answer to Preliminary Objections, upon the following by Electronic Mail in PDF format: Richard T. Bobbe III, Esquire McKissock & Hoffinan 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 GIBSON & PERKINS P.C. BY: 01 200 ast State Street Medi A 1906 610.565. kevingibson@gibperk.com GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 101 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevin ibg son@,gibnerk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. MARCUS McKNIGHT, ESQ. AND No. 2003-256 Civil Term Jury Trial Demanded IRWIN MCKNIGHT & HUGHES Defendants PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS 1. FACTS: On or about May, 1996 the Plaintiffs herein were the owners of a Texaco Gasoline Station franchise located at I Oh & Lowther Streets, in Camp Hill, Pennsylvania. Plaintiffs had owned the subject matter Texaco franchise since May 1992. Star Enterprises/Texaco Oil Company managed independent gas station businesses such as the Plaintiffs herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. 1 As part of their franchise agreement with Star Enterprises/Texaco, Plaintiffs did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. On or about Nov 1995, Plaintiffs decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs Star Enterprises/Texaco franchise. On or about Dec 1995, Plaintiffs were presented with offer to purchase their Star Enterprises/Texaco franchise. From Muhammad Farooq who is of Indian/Pakistani/Sikh descent. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs had 1/2 year left on their lease with Star Enterprises/Texaco and had negotiated a new lease for the next 3 years just awaiting execution by Plaintiffs. The new 3 year lease provided for rent of $2700 the 1St year, $2900 the 2°d year and $3100 the 3'd year. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs monthly rent for the Star Enterprises/Texaco station was $2,500 per month. The leases and franchise agreements were freely assignable but subject to approval by Star/Texaco with a provision that consent could not be unreasonably withheld. It was always understood between Plaintiffs and their prospective purchaser Muhammad Farooq that as part of the sale of his Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs existing lease with Star Enterprises/Texaco and continue with the monthly rent of $2500 for the balance of the lease term and take over the new lease at the rates stated for the next three years. 2 On or about March 1996, an employee of Star Enterprises/Texaco advised Plaintiffs that Star Enterprises/Texaco would consent to the sale of Plaintiffs franchise and lease agreement contingent upon Mr. Muhammad F arooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500 notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so insisted upon a monthly rental contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep of Indian/Pakistani/Sikh descent from purchasing the franchises As a result of Star Enterprises/Texaco insisting on an increased monthly rent Plaintiffs lost their sale to Mr. Muhammad Farooq in that Mr. Muhammad Farooq could not make the sale work with the demanded increase in monthly rent. On or about March 1996 Plaintiffs consulted with Defendant McKnight to ascertain if Plaintiffs had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's refusal to approve the franchise sale without an increase in monthly rent as above described. After consultation with Mr. McKnight Defendant McKnight advised that Plaintiffs had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under the federally enacted Petroleum Marketing Practices Act ["PMPA"] for punitive damages for Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiffs proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/ Sikh ethnicity from owning Star Enterprises/Texaco franchises. Defendant McKnight advised that Star Enterprises/Texaco's refusal to extend Plaintiffs Lease to Mr. Muhammad Farooq as 3 alleged above was a constructive refusal to renew Plaintiffs Texaco franchise in violation of the PMPA. On or about April 1996 Defendant McKnight agreed to represent Plaintiffs in connection with filing a lawsuit against Star Enterprises/Texaco to advance the claims as described above. Plaintiffs signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. Subsequent to entering into the contingent fee agreement as described above, it became Plaintiffs perception that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. Defendant McKnight commenced a pattern of not responding to Plaintiffs letters and telephone calls. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiffs claims against Star Enterprises/Texaco, Plaintiffs made the decision to seek new counsel. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, 334 S. Franklin St., Wilkes-Barre, PA 18703 who advised Plaintiffs that he would prosecute an action against Star Enterprises/Texaco but only on an hourly basis as opposed to a contingent fee relationship. In Plaintiffs meeting with attorney Thomas F. Ford Plaintiffs were advised that Plaintiffs could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight in either State or Federal Court within the one or two year periods described above. The Defendants have filed six (6) Preliminary Objections to Plaintiff's Second Complaint the four primary objections being summarized as follows: ' The last two objections claim that "Plaintiffs Second Amended Complaint Mischaracterizes Star Enterprises" and the Amended Complaint lacks specificity. The first of dlese objections pleads matters 4 1. Even if Defendant McKnight was guilty of malpractice there is no viable "case within the case" because Plaintiffs never had a cause of action under the federally enacted "Petroleum Marketing Practices Act; 2. Even if Defendant McKnight was guilty of malpractice there is no viable "case within the case" because Plaintiffs never had a cause of action under state law; 3. Defendant McKnight preserved Plaintiffs claims by filing a writ of summons; 4. There is no legal basis for Plaintiffs to be entitled to an award of punitive damages. II. ISSUES PRESENTED: 1. Since Defendant McKnight was guilty of malpractice and since Plaintiffs did have a viable "case within the case" because Plaintiffs did have a cause of action under the federally enacted "Petroleum Marketing Practices Act must this Court overrule Defendants' Preliminary Objections? Suggested Answer: Yes. 2. Since Defendant McKnight was guilty of malpractice and since Plaintiffs did have a viable "case within the case" cause of action under state law must Defendants' Preliminary Objections be overruled? Suggested Answer: Yes. outside the Complaint and is therefore an invalid objection. The remaining objection that the 73 paragraph Amended Complaint lacks specificity is a makeweight argument. These "throw in" objections should be overruled out of hand. 5 3. Since Defendant McKnight did not preserve Plaintiffs claims by filing a bare writ of summons must Defendants' Preliminary Objections be overruled? Suggested Answer: Yes. 4. Since Plaintiffs' Amended Complaint sets forth facts demonstrating Star/Texaco acted outrageously and wantonly with respect to refusing to renew Plaintiffs' franchise on racial grounds, this Court must overrule Defendants Preliminary Objection that Plaintiffs are not entitled to punitive damages? Suggested Answer: Yes. III. ARGUMENT: A. Plaintiffs did have a cause of action under the federally enacted "Petroleum Marketing Practices Act Plaintiffs respond by stating that the averments that Texaco/Star violated the PMPA are clearly set forth in paragraphs 35 of the Complaint. Failure to consent to the assignment of a gasoline station franchise can violate both the PMPA and can also be violative of state law and a claim for violation of both the PMPA and state law can be advanced in a federally filed action. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his 6 duties under the ethics laws by filing a Writ of Summons if the litigation was without meet. Defendants' contention that there can be no federal claim under the PMPA for failure to approve an assignment of a gasoline station franchise is just a plain misstatement of the law. Failure to consent when consent is unreasonably withheld can be viewed as a PMPA sanctionable constructive termination of the franchise. It is also denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. B. Plaintiffs had a viable state law claim. It is denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. Had Defendant McKnight filed a PMPA based complaint the federal court would have been able to adjudicate all state law claims as well. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. C. Defendant McKnight's failure to serve the Writ of Summons resulted in the Statute of Limitations not being tolled. Defendants contentions that he preserved Plaintiffs' causes of action by filing a writ of summons doesn't even pass the straight face test. In the first instance, Defendants Objection that the PMPA preempted state law is a tacit admission that McKnight is guilty of malpractice by commencing an action in state court instead of in federal court. 7 Leaving that go for the moment is the defense has conveniently ignored the fact that McKnight never served the writ he filed. All of the discussion in Defendants' Brief about the "gist of the action" doctrine whatever that truly means doesn't mean squat in this case because an unserved writ is a dead writ. Witherspoon v City of Philadelphia, 768 A 2d 1079 (Pa. 2001) specifically provides that a plaintiff must take steps to serve a Defendant with service of process within 30 days of filing a'Writ of Summons in order to preserve an action from being within an applicable statute of limitations. This was not done by the Defendant herein. End of story. D. Plaintiffs' Amended Complaint sets forth facts demonstrating Star/Texaco acted outrageously and wantonly with respect to refusing to renew Plaintiffs' franchise on racial grounds thereby entitling Plaintiffs to punitive damages. In an attempt to confuse the Court the defense suggests that Plaintiffs are claiming they are entitled to punitive damages because of the conduct of Defendants. There is allegation in the complaint to that effect at all. What Plaintiff seeks to recover in their malpractice action is a recovery of the punitive damages they surely would have recovered had they been able to proceed in a lawsuit against'Star/Texaco. It is hornbook legal malpractice law that a victim of legal malpractice can recover the punitive damages that were lost in the underlying matter due to his/her lawyer's negligence. As stated by the renowned commentators in this field, in Section 19.7 of their Treatise Legal Malpractice 4t' Edition, Mallen and Smith state the proposition thusly: "If the client should have recovered exemplary damages in the underlying matter but for the attorney's wrongful conduct, then such loss should be recoverable in the malpractice action as direct damages". 8 IV. CONCLUSION: This Court, in ruling on preliminary objections, must accept as true all well pleaded material allegations in the petition for review, as well as all inferences reasonably deduced there from. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwith. 1995). This court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Id. The standard of review on appeal is whether the law under consideration is clear and free from doubt. AFL-CIO v. Commonwealth, 563 Pa. 108, 757 A.2d 917 (2000). In applying these principles to the instant case, this Court must overrule Defendants' Preliminary Objections. GIBSON & PERKINS P.C. BY: CERTIFICATE OF SERVICE that on this 15th day of December 2004, I served a true and correct copy of the Plaintiffs' Memorandum of Law in opposition to Preliminary Objections, upon the following by Electronic Mail in PDF format: Richard T. Bobbe III, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 jalbert@mckho£com BY: KE'V WILLIAM G Suite 101 200 East Stat Media PA 19063 610.565.1708 kevingibson@gibperk.com 9 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 101 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibson!ggibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded Defendants ) ) PLAINTIFFS' ANSWERS TO PRELIMINARY OBJECTIONS 1. - 5. It is admitted that these are the relevant facts and causes of action pled by Plaintiffs in their Second Amended Complaint. 6. It is denied that a "civil action" was filed as alleged. To the contrary, a bare Writ of Summons was filed upon which no service was made and thus the Writ expired as a matter of law. Thus there was and/or is no pending action, See Witherspoon v City of Philadelphia, 768 A2d 1079 (Pa. 2001). It is also denied that Star Enterprises is a "co- franchisor" [sic] as alleged. 7. This is an improper preliminary objection that would entitle Plaintiffs to file preliminary objections of their own. However and so as not to get bogged down in a procedural battle, Plaintiffs respond by stating that the averments that Texaco/Star violated the PMPA are clearly set forth in paragraphs 35 of the Complaint. Failure to consent to the assignment of a gasoline station franchise can violate both the PMPA and can also be violative of state law and a claim for violation of both the PMPA and state law can be advanced in a federally filed action. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 8. It is denied that there can be no federal claim under the PMPA for failure to approve an assignment of a gasoline station franchise in that failure to do so can be viewed as a PMPA sanctionable termination of the franchise. It is also denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 1999); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 9. It is denied that federal law preempts a state based claim for the unreasonable lack of consent to an assignment of a franchise. Had Defendant McKnight filed a PMPA based complaint the federal court would have been able to adjudicate all state law claims as well. See, Hannon v Exxon, 54 F. Supp 2d 485 (D. Md. 19'99); Gager v Mobil, 547 F. Supp. 854 (D. Conn. 1982); Butler v Sunoco, 658 F. Supp. 858 (D. Md. 1987). The question being begged is if the Defendant lawyer did not believe there was not such a cause of action, then why did the Defendant McKnight violate his duties under the ethics laws by filing a Writ of Summons if the litigation was without merit. 10. Plaintiff has never contended that Texaco did not have the right to raise rent. Plaintiffs state law claim is that Texaco was attempting to increase an agreed to rent as a basis for consenting to an assignment of that lease which is a simple state law breach of contract action that could have been prosecuted in either state or federal court had the Defendant timely filed and served such an action. 11. Denied The Defendant failed to preserve the state law claims by his failure to timely and properly serve the Writ of Summons he filed in this Court. Witherspoon v City of Philadelphia, 768 A 2d 1079 (Pa. 2001) specifically provides that a plaintiff must take steps to serve a Defendant with service of process within 30 days of filing a Writ of Summons in order to preserve an action from being within an applicable statute of limitations. This was not done by the Defendant herein. 12. Denied. Plaintiff would have been awarded punitive damages in that Texaco's attempts to deprive minorities from acquiring Texaco g franchises just because of their creed and/or ethnic background is outrageous conduct. 13. This objection is outside of the four comers of the Complaint and must be stricken. It is also superfluous to the causes of action being pled. 14. Denied tjiat the Complaint is vague. It complies with Pa. RCP 1019. P.C. BY: K11VIN WkLLIAM Cr1'BSON CERTIFICATE OF SERVICE I hereby certify that on this 25th day of December 2005, I served a true and correct copy of the Plaintiffs' Answer to Preliminary Objections, upon the following by First Class U.S. Mail: Richard T. Bobbe III, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 GIBSON & PERKINS P.C. BY: PAN WILLIA Q GIBSON Suit 101 200 Ea t State Str t Media P 610.565.1708 kevingibson@gibperk.com VJ'? ? -Il N r, :!i CHARLES HOLLENBACH and IN THE COURT OF COMMON PLEAS OF DIANNA L. HOLLENBACH CUMBERLAND COUNTY, PENNSYLVANIA V. MARCUS MCKNIGHT, ESQUIRE ; NO. 2003 - 0256 CIVIL TERM And IRWIN MCKNIGHT AND HUGHES CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this day of JUNE, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. They are granted insofar as the claim for punitive damages is DISMISSED. In all other respects, the preliminary objections are DENIED. ,Kevin William Gibson, Esquire 200 East State Street Media, Pennsylvania 19063 J ,J'effrey B. Albert, Esquire I 1700 Market Street, Suite 3000 Phila., Pa. 19103-3930 :sld ?f oL-a?i-o5 Edward E. Guido, J. Lit .C !'r', f Z tMI SOR CHARLES HOLLENBACH and : IN THE COURT OF COMMON PLEAS OF DIANNA L. HOLLENBACH : CUMBERLAND COUNTY, PENNSYLVANIA V. MARCUS MCKNIGHT, ESQUIRE : NO. 2003 - 0256 CIVIL TERM And IRWIN MCKNIGHT AND HUGHES : CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER, GUIDO, JJ. OPINION AND ORDER OF COURT The instant legal malpractice action is based upon defendants' alleged failure to timely prosecute an action against Texaco Oil Company on behalf of plaintiffs. Currently before us are defendants' Preliminary Objections to plaintiffs Second Amended Complaint. We have reviewed the relevant pleadings as well as the briefs filed by the parties, and have heard argument on the issues. We are satisfied that all of the objections, except one, are without merit. Consequently, they will be dismissed without further discussion. However, for the reasons hereinafter set forth, the preliminary objection asking for the dismissal of the claim for punitive damages will be granted. Plaintiffs contend that punitive damages would have been recoverable against Texaco because of its outrageous conduct. They argue that they should be able to recover from defendants all that they could have recovered from Texaco. Defendants counter that punitive damages are not recoverable in a legal malpractice action where the claim is based upon the conduct of a party in the underlying case. NO. 2003 - 0256 CIVIL TERM The question before us appears to be one of first impression in this Commonwealth. There is a split of authority among the jurisdictions that have addressed the issue. The primary rationale for permitting recovery seems to be that if punitive damages would have been recoverable in the underlying case, the plaintiff can be made whole only if they are recoverable in the legal malpractice action. See Tri - G, Inc. v. Burke, 817 N.E. 2d 1230, 1259 (Ill. App. Ct. 2004). The other view is that compensatory damages alone are sufficient to make the plaintiff whole. See Ferguson v. Leiff, 69 P. 3d 965 (Cal. 2003). Based upon the recognized purposes of punitive damages in Pennsylvania, we conclude that defendants' position is the correct one. The "function of punitive damages is to deter and punish egregious behavior." Martin v. Johns - Manville, Corp. 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985) (citations omitted). Thus, in this Commonwealth the only recognized policy objectives for punitive damages are "punishment and deterrence of the tortfeasor." G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 713 A.2d 1127, 1129 (1998). Neither of the above policy objectives would be accomplished by allowing recovery of lost punitive damages in a legal malpractice action. In the instant case the egregious behavior was committed by Texaco, not the defendants. Imposing liability for punitive damages upon the defendants would neither punish Texaco nor deter anyone else from committing similar misconduct in the future. Since punishment and deterrence are the only proper purposes to be served by punitive damages, it follows that they are not meant to compensate the injured party. As our Supreme Court stated in G.J.D. supra; "Punitive damages are not awarded as NO. 2003 - 0256 CIVIL TERM additional compensation but are purely penal in nature." 713 A.2d at 1129. Since they are based upon the defendant's conduct, not the plaintiff s loss, punitive damages are in effect a "windfall" to which the plaintiff, by definition, has no entitlement. See Piscitelli v. Friedenberg, 105 Cal. Rptr. 2d 88, 108 (Cal. Ct. App. 2001). Therefore, the recovery of lost punitive damages is not necessary to make the successful plaintiff whole in a legal malpractice suit. 1 ORDER OF COURT AND NOW, this p 1' day of JUNE, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. They are granted insofar as the claim for punitive damages is DISMISSED. In all other respects, the preliminary objections are DENIED. By the Court, 1s/ Edward E. Guido Edward E. Guido, J. Kevin William Gibson, Esquire 200 East State Street Media, Pennsylvania 19063 Jeffrey B. Albert, Esquire 1700 Market Street, Suite 3000 Phila., Pa. 19103-3930 :sld 3 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibson ,gibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded Defendants } PLAINTIFFS' PETITION FOR RECONSIDERATION OF THE COURT'S ORDER OF JUNE 21, 2005 SUSTAINING DEFENDANTS' PRELIMINARY OBJECTIONS OR, IN THE ALTERNATIVE, CERTIFYING THE ISSUE FOR APPEAL FACTS: On or about May 1996, the Plaintiffs herein were the owners of a Texaco Gasoline Station franchise located at 10'11 & Lowther Streets, in Camp Hill, Pennsylvania. Plaintiffs had owned the subject matter Texaco franchise since May 1992. Star Enterprises/Texaco Oil Company managed independent gas station businesses such as that of the Plaintiffs herein through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises". Star Enterprises was the named Franchisor for all independently owned Texaco gas stations. As part of their franchise agreement with Star Enterprises/Texaco, Plaintiffs did not own the gas station building or the real estate upon which the station was situated but instead paid a monthly rent to Star Enterprises/Texaco for the use of the building and land. On or about Nov 1995, Plaintiffs decided to retire from the gasoline service station business and began looking for potential purchasers of Plaintiffs' Star Enterprises/Texaco franchise. On or about Dec 1995, Plaintiffs were presented with offer to purchase their Star Enterprises/Texaco franchise from Muhammad Farooq, who is of Indian/Pakistani/Sikh descent. At the time that Plaintiffs were presented with the offer to purchase as defined above, Plaintiffs had 1/2 year left on their lease with Star Enterprises/Texaco, and had negotiated a new lease for the next 3 years, which merely required execution by Plaintiffs. The new 3-year lease provided for rent of $2700 the 1 s` year, $2900 the 2nd year and $3100 the 3`d year. At the time that Plaintiffs were presented with the Farooq offer to purchase, Plaintiffs' monthly rent for the Star Enterprises/Texaco station was $2,500 per month. The leases and franchise agreements were freely assignable but subject to approval by Star/Texaco with a provision that consent could not be unreasonably withheld. It was always understood between Plaintiffs and their prospective purchaser, Muhammad Farooq, that as part of the sale of this Star Enterprises/Texaco franchise Muhammad Farooq would assume Plaintiffs' existing lease with Star Enterprises/Texaco, continue with the monthly rent of $2500 for the balance of the lease term and assume the new lease at the rates stated for the next three years. On or about March 1996, an employee of Star Enterprises/Texaco advised Plaintiffs that, notwithstanding the fact that the lease to be assigned provided for a monthly rental of $2,500, Star Enterprises/Texaco would only consent to the sale of Plaintiffs' franchise and lease agreement contingent upon Mr. Muhammad Farooq agreeing to pay Star Enterprises/Texaco an increased monthly rental of $3,500. Upon information and belief, the reason why Star Enterprises/Texaco, with no contractual basis to do so, insisted upon a monthly rental amount contrary to what was contained in the existing lease was that Star Enterprises/Texaco was engaged upon a campaign to keep persons of Indian/Pakistani/Sikh descent from purchasing the franchises. As a result of Star Enterprises/Texaco's insistence upon an increased monthly rent, Plaintiffs lost their opportunity to sell to Mr. Muhammad Farooq, as Muhammad Farooq could not meet the demanded increase in monthly rent. On or about March 1996, Plaintiffs consulted with Marcus McKnight, Esquire to ascertain if Plaintiffs had any legal recourse against Star Enterprises/Texaco regarding Star Enterprises/Texaco's refusal to approve the franchise sale without an increase in monthly rent as above described. After consultation with them, Defendant McKnight advised that Plaintiffs had a cause of action against Star Enterprises/Texaco for breach of contract and for damages under the federally enacted Petroleum Marketing Practices Act ["PMPA"]. Further, he advised Plaintiffs that they had a claim for punitive damages as a result of Star Enterprises/Texaco's outrageous conduct in refusing to consent to Plaintiffs' proposed sale solely on the ground that Star Enterprises/Texaco desired to limit people of Indian/Pakistani/Sikh ethnicity from owning Star Enterprises/Texaco franchises. Defendant McKnight then advised that Star Enterprises/Texaco's refusal to extend Plaintiffs' existing lease to Mr. Muhammad Farooq was a constructive refusal to renew Plaintiffs Texaco franchise in violation of the PMPA. On or about April 1996, Defendant McKnight agreed to represent Plaintiffs in connection .with filing a lawsuit against Star Enterprises/Texaco to advance the claims described above. Plaintiffs signed a contingent fee agreement with Defendant, their copy of which they cannot presently locate. Subsequent to entering into the contingent fee agreement, Plaintiffs aver that Defendant McKnight was not moving forward with any dispatch with the case against Star Enterprises/Texaco. Defendant McKnight commenced a pattern of not responding to Plaintiffs' letters and telephone calls. Frustrated by Defendant McKnight's apparent lack of diligence in prosecuting Plaintiffs' claims against Star Enterprises/Texaco, Plaintiffs made the decision to seek new counsel. On or about March 2001, Plaintiffs consulted with Attorney Thomas F. Ford, located at 334 S. Franklin St., Wilkes-Barre, PA 18703, who advised Plaintiffs that he would prosecute an action against Star Enterprises/Texaco, but only on an hourly basis rather than a contingent fee basis. During their meeting with Attorney Ford, Plaintiffs were advised that they could no longer maintain a lawsuit for punitive damages under PMPA or for attorneys fees and costs under state law in that no suit had been filed by Defendant McKnight in either State or Federal Court within the one or two year periods required under the applicable statutes. The Defendants herein filed six Preliminary Objections to Plaintiff's Second Complaint. Five of the Preliminary Objections were denied. The Sixth Objection was granted by Order, dated June 21, 2005, which stated the following: "AND NOW, this 21s' day of JUNE, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. They are granted insofar as the claim for punitive damages is DISMISSED. In all other respects, the preliminary objections are DENIED. By the Court, Edward E. Guido, J." See the June 21, 2005 Order, a copy of which is attached hereto as Exhibit "A". IL ISSUES PRESENTED: A. Should the court reconsider its Order since Plaintiffs' Amended Complaint sets forth facts demonstrating that Star/Texaco acted outrageously and wantonly with respect to refusing to renew Plaintiffs' franchise on racial grounds, thereby entitling Plaintiffs to punitive damages? Suggested Answer: Yes. B. In the alternative to reconsidering its Order of June 21, 2005, should the Court certify the issue for appeal to the Superior Court of Pennsylvania, since the Order involves a controlling question of law to which there is a substantial ground for difference of opinion and since an appeal will materially advance the ultimate termination of this matter? Suggested Answer: Yes. III. ARGUMENT: A. The Court Should Reconsider its Order Since Plaintiffs' Amended Complaint Sets Forth Facts Demonstrating that Star/Texaco Acted Outrageously and Wantonly with Respect to Refusing to Renew Plaintiffs' Franchise on Racial Grounds, Thereby Entitling Plaintiffs to Punitive Damages. As previously stated, the Court sustained one of the Defendants' Preliminary Objections by Order dated June 21, 2005, thereby dismissing Plaintiffs' claim for punitive damages. In Pennsylvania, a court may modify or rescind any order pursuant to 42 Pa CSA §5505, which states the following: " Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal has been taken or allowed." For the reasons set forth below, Plaintiffs respectfully request that the Court modify its order of June 21, 2005 to deny Defendants' Preliminary Objection to Plaintiffs' punitive damage claim. Title 15 of the United States Code contains the federally enacted Petroleum Marketing Practices Act ["PMPA"], which governs in part the rights and obligations of gas station owners and producers of gasoline such as Star Enterprises/Texaco. The conduct of Star Enterprises/Texaco in refusing to extend the rental payments that were in force in Plaintiffs Agreement with Star Enterprises/Texaco to Mr. Muhammad Farooq, the proposed purchaser of Plaintiffs franchise, constitutes a violation under subsection 2802 of Title 15 of the United States Code. Under Section 2805 of Title 15 of the United States Code, Plaintiffs would have been entitled to punitive damages if they could have convinced a fact finder that Star Enterprises/Texaco's refusal to consent to an assignment of Plaintiffs franchise was willful and/or malicious and in violation of the requirements imposed on Star Enterprises/Texaco under Section 2802 of Title 15. Plaintiffs believe, and therefore aver, that they would have been successful in demonstrating to a fact finder that Star Enterprises/Texaco's racial discrimination in seeking to curtail people of Indian/Pakistani/Sikh descent from purchasing franchises was willful and malicious conduct within the context of PMPA. In its Opinion, a copy of which is attached as Exhibit "B", the Court does not question whether punitive damages are permissible in an action brought under the PMPA. Rather, the issue addressed is whether lost punitive damages can be pursued in an action for legal malpractice committed in the underlying suit, which was brought under the PMPA. In its Opinion, the Court acknowledges that this issue "appears to be one of first impression in this Commonwealth." After citing two opposing authorities, the Court concludes that punitive damages are not recoverable in a legal malpractice case where a party other than the defendants to the malpractice suit committed the egregious behavior. In support of its conclusion, the Court states that "the recovery of lost punitive damages is not necessary to make the successful plaintiff whole in a legal malpractice suit." Opinion at 3. Plaintiffs respectfully disagree. The Pennsylvania case law regarding the measure of damages in a legal malpractice action is well settled. The measure of damages is a plaintiffs actual loss or the difference between what a plaintiff actually recovered and what he or she would have recovered but for the defendant-attorney's negligence. Rizzo v. Haines, 520 Pa. 484, 499, 515 A.2d 58, 65 (1989). Stated another way by the Pennsylvania Supreme Court in Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027, 1030 (1998): "Actual losses in a legal malpractice action are measured by the judgment the plaintiff lost in the underlying action and the attorney who negligently handled the underlying action is the party held responsible for the lost judgment." In the case at bar, Plaintiffs could have recovered compensatory damages, punitive damages, attorneys' fees and costs had Defendants perfected suit within the time frame permitted by state law and by PMPA. Instead, as a result of Defendants' negligence, Plaintiffs recovered nothing. Accordingly, Plaintiffs herein should be able to pursue a claim for the damages set forth above. The Kituskie court stated that a plaintiff in a legal malpractice action should not be able to obtain a judgment against an attorney greater than that obtainable in the underlying matter, as this would represent a windfall to the plaintiff. Id. It stands to reason, therefore, that a legal malpractice plaintiff should not be limited to a judgment that is less than what he or she would have obtained in the underlying action. To suggest otherwise would create a "windfall" to the negligent attorney. This, however, is the precise result suggested in the California case of Ferguson v. Leiff, 69 P.3d 965 (Cal. 2003), which was cited by this Court. Plaintiffs respectfully assert that this Honorable Court should have followed instead the holding in the Illinois case of Tri-G, Inc. v. Burke, 817 N.E.2d 1230, 1259 (Ill. App. Ct. 2004), which it also cited in its Opinion. In that case, the Appellate Court of Illinois stated: "We believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney's negligence." Tri-G, Inc. at 1259. The court then joins the majority of jurisdictions in holding that the punitive damages lost in the underlying case as a result of the attorney's negligence are compensatory damages in a malpractice case. The Illinois court indicates that only California and New York disallow lost punitive damages in a legal malpractice action; whereas, the courts of Arizona, Colorado, Kansas, South Dakota and the United States District Court for the District of Columbia have ruled that such damages may be recovered in a malpractice action. It is Plaintiffs' position that Pennsylvania should join the majority in regard to this issue. In light of the foregoing, Plaintiffs request that the Court modify its order of June 21, 2005 to deny Defendants' Preliminary Objection to Plaintiffs' punitive damage claim and permit Plaintiffs to proceed on each of their claims. B. In the Alternative to Reconsidering its Order of June 21, 2005, the Court Should Certify the Issue for Appeal to the Superior Court of Pennsylvania, Since the Order Involves a Controlling Question of Law to Which There is a Substantial Ground for Difference of Opinion and Since an Appeal Will Materially Advance the Ultimate Termination of this Matter. In its Opinion, the Court acknowledged that the Plaintiffs' entitlement to punitive damages in this malpractice case is one of "first impression". It then cited two decisions in which the Illinois and California Courts reached opposite conclusions. See Opinion at 2. In the event that this Honorable Court is not inclined to modify its prior Order to deny Defendants' Preliminary Objection as to punitive damages, then Plaintiffs respectfully assert that this issue is exactly the type of issue that should be certified for appellate review before the remaining claims are adjudicated. First, Plaintiffs' right to punitive damages is a controlling question of law in the instant matter and, further, is an issue of first impression in Pennsylvania. Second, there is "substantial ground for difference of opinion", as evidenced by the diametrically opposed conclusions of the Illinois Appellate Court in the Tri-G. Inc. case and the California Supreme Court in the Ferguson case. Third, a tremendous amount of judicial resources will have been expended for naught if Plaintiffs are successful in securing a remand of this matter on the punitive damages issue, after litigating the remaining claims before the trial court. Under circumstances such as these, the trial court's Order should state that the interlocutory order involves a controlling question of law to which there is substantial difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter in accordance with 42 Pa. CSA §702(b). Under PA RCP Rule 1311, "An application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 PA CSA §702(b) shall be filed with the lower court or other governmental unit within 30 days after the entry of the interlocutory order". The appellate court then has the discretion to allow the appeal to be taken of the order in question. 42 Pa. CSA §702(b). In light of the foregoing, Plaintiffs respectfully request that this Honorable Court amend its Order of June 21, 2005 to include the required language described above in order to certify the issue of Plaintiffs' entitlement to punitive damages for disposition by the appellate court prior to the trial of this matter. IV. CONCLUSION In conclusion, Plaintiffs respectfully request that this Court modify its Order of June 21, 2005 to deny Defendants' Preliminary Objection to Plaintiffs' punitive damages claim and to allow Plaintiffs to pursue this claim at trial. In the alternative, Plaintiffs request that this Court amend the Order to permit Plaintiffs to appeal this issue to the Superior Court pursuant to 42 Pa. CSA §702(b) prior to the trial of the case by this Honorable Court. V. STATEMENT PURSUANT TO C.C.R.P. RULE 206-2(a) Counsel for Plaintiffs, Kevin W. Gibson, contacted counsel for Defendants, Jeffrey B. Albert, regarding the Defendants' concurrence with or opposition to the within Petition under C.C.R.P. Rule 206-2(a) but did not receive a response. Ily submitted, & PERKINS P.C. BY: rEVRq WILLIAM GIBSON 200 East Sit Media PA 19063 610.565.1708 kevingibson@gibperk.com CHARLES HOLLENBACH and DIANNA L. HOLLENBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MARCUS MCKNIGHT, ESQUIRE And IRWIN MCKNIGHT AND HUGHES NO. 2003 - 0256 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this day of JUNE, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. They are granted insofar as the claim for punitive damages is DISMISSED. In all other respects, the preliminary objections are DENIED. Edward E. Guido, J. Kevin William Gibson, Esquire 200 East State Street Media, Pennsylvania 19063 Jeffrey B. Albert, Esquire 1700 Market Street, Suite 3000 Phila., Pa. 19103-3930 :sld CHARLES HOLLENBACH and DIANNA L. HOLLENBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MARCUS MCKNIGHT, ESQUIRE And IRWIN MCKNIGHT AND HUGHES NO. 2003 - 0256 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER. GUIDO, JJ. OPINION AND ORDER OF COURT The instant legal malpractice action is based upon defendants' alleged failure to timely prosecute an action against Texaco Oil Company on behalf of plaintiffs. Currently before us are defendants' Preliminary Objections to plaintiff's Second Amended Complaint. We have reviewed the relevant pleadings as well as the briefs filed by the parties, and have heard argument on the issues. We are satisfied that all of the objections, except one, are without merit. Consequently, they will be dismissed without further discussion. However, for the reasons hereinafter set forth, the preliminary objection asking for the dismissal of the claim for punitive damages will be granted. Plaintiffs contend that punitive damages would have been recoverable against Texaco because of its outrageous conduct. They argue that they should be able to recover from defendarits all that they could have recovered from Texaco. Defendants counter that punitive damages are not recoverable in a legal malpractice action where the claim is based upon the conduct of a party in the underlying case. NO. 2003 - 0256 CIVIL TERM The question before us appears to be one of first impression in this Commonwealth. There is a split of authority among the jurisdictions that have addressed the issue. The primary rationale for permitting recovery seems to be that if punitive damages would have been recoverable in the underlying case, the plaintiff can be made whole only if they are recoverable in the legal malpractice action. See Tri - G, Inc. v. Burke, 817 N.E. 2d 1230, 1259 (Ill. App. Ct. 2004). The other view is that compensatory damages alone are sufficient to make the plaintiff whole. See Ferguson v. Leiff, 69 P. 3d 965 (Cal. 2003). Based upon the recognized purposes of punitive damages in Pennsylvania, we conclude that defendants' position is the correct one. The "function of punitive damages is to deter and punish egregious behavior." Martin v. Johns - Manville, Corp. 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985) (citations omitted). Thus, in this Commonwealth the only recognized policy objectives for punitive damages are "punishment and deterrence of the tortfeasor." G.J.D. by G.JD. v. Johnson, 552 Pa. 169, 713 A.2d 1127, 1129 (1998). Neither of the above policy objectives would be accomplished by allowing recovery of lost punitive damages in a legal malpractice action. In the instant case the egregious behavior was committed by Texaco, not the defendants. Imposing liability for punitive damages upon the defendants would neither punish Texaco nor deter anyone else from committing similar misconduct in the future. Since punishment and deterrence are the only proper purposes to be served by punitive damages, it follows that they are not meant to compensate the injured party. As our Supreme Court stated in G.J.D. supra, "Punitive damages are not awarded as NO. 2003 - 0256 CIVIL TERM additional compensation but are purely penal in nature." 713 A.2d at 1129. Since they are based upon the defendant's conduct, not the plaintiff's loss, punitive damages are in effect a "windfall" to which the plaintiff, by definition, has no entitlement. See Piscitelli v. Friedenberg, 105 Cal. Rptr. 2d 88, 108 (Cal. Ct. App. 2001). Therefore, the recovery of lost punitive damages is not necessary to make the successful plaintiff whole in a legal malpractice suit. ORDER OF COURT AND NOW, this day of JUNE, 2005, Defendants' Preliminary Objections are GRANTED in part and DENIED in part. They are granted insofar as the claim for punitive damages is DISMISSED. In all other respects, the preliminary objections are DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Kevin William Gibson, Esquire 200 East State Street Media, Pennsylvania 19063 Jeffrey B. Albert, Esquire 1700 Market Street, Suite 3000 Phila., Pa. 19103-3930 :sld CERTIFICATE OF SERVICE I hereby certify that on thi, day of July 2005, I served a true and correct copy of the Plaintiffs' Petition For Reconsideration Of The Court's Order Of June 21, 2005 Sustaining Defendants' Preliminary Objections Or, In The Alternative, Certifying The Issue For Appeal, upon the following by electronic mail in pdf format: Richard T. Bobbe III, Esquire McKissock & Hoffman 1700 Market Street, Suite 3000 Philadelphia, PA 19103-3930 jalbert@mckhof.com GIBSON,& PERKINS P.C. BY: ?E?dIN WIL AM GIBSON Suite 1 200 Eas tate Str t Media PA 19 610.565.1708 kevingibson@gibperk.com -RECEIVED JUL 27 2005 CHARLES HOLLENBACH AND ) DIANNA L. HOLLENBACH ) Plaintiffs ) V. ) MARCUS McKNIGHT, ESQ. ) AND ) COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded IRWIN MCKNIGHT & HUGHES ) Defendants ) ORDER AND NOW this a ??day of T1"a' 2005, upon review of the Plaintiffs' Petition For Reconsideration Of The Court's Order Of June 21, 2005 Sustaining Defendants' Preliminary Objections Or, In The Alternative, Certifying The Issue For Appeal and the Defendants' Answer thereto, it is hereby ORDERED AND DECREED that the Order of June 21, 2005 is amended to add the following language: "This Order involves o i question of law to which there is a substantial ground for dill ce of opinion d since an appeal will materially advance the ultimate termination of s m--q:? J. o?. I.) j :I 4 !,"j 9, Z -I-,r S007 MCKISSOCK & HOFFMAN, P.C. Jeffrey B, Albert, Esquire Pa. I.D. No. 09859 1818 Market Street, 13`h Floor Philadelphia, PA 19103 (215) 246-2100 To the within Plaintiff, you are hereby notified to plead to the enclosed with New Matter within 20 days from service hereof or a default judgment -A - .._....A...._.._..,?,- -- '"c n' ht, Esquire liwin night & Hughes v known as Irwin & McKnight) CHARLES HOLLENBACH and DIANNA L. HOLLENBACH, Plaintiffs, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2003-256 Civil Term V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES Defendants. Jury Trial Demanded DEFENDANTS' ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT WITH NEW MATTER Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes (now known as Irwin & McKnight), by their attorney, Jeffrey B. Albert, Esquire, hereby answer plaintiffs' Second Amended Complaint as follows: ANSWER 1. Admitted in part. Denied in part. It is admitted only that plaintiffs Charles Hollenbach a/k/a Charles C.B. Hollenbach ("hereinafter "Hollenbach) and Dianna L. Hollenbach a/k/a Dianna L. Morrow (hereinafter "Morrow") live at 112 Sherby Lane, Shermans Dale, Pennsylvania. 2. Admitted that Marcus McKnight, Esquire is an attorney duly licensed in Pennsylvania and that he practices law at 60 West Pomfret Street, Carlisle, Pennsylvania. 3. Admitted that Irwin McKnight & Hughes, currently known as Irwin & McKnight, was a Pennsylvania general partnership through whom its partners are engaged in the practice of law at 60 West Pomfret Street, Carlisle, Pennsylvania. 4. and 5. Admitted that at all times relevant hereto McKnight has been and remains a partner in Irwin, McKnight & Hughes and that he has acted in the scope of his duties as a partner of that law firm. 6. Denied as stated. On or about May 1996, plaintiffs were not the owners of a property at 10'h & Lowther Streets in Lemoyne, Pennsylvania, but operated as a franchisee of Star Enterprises/Texaco at that site, leased the property from Star Enterprises/Texaco and operated a gasoline station at that site selling Texaco-branded gasoline. Denied as stated. It is denied that plaintiffs owned "the subject matter Texaco franchise," as a franchise does not own a franchise but operates pursuant to an agreement setting forth the terms of the franchise. It is admitted only that one or both plaintiffs had been a franchisee of Star Enterprises/Texaco for some time prior to May 1996, but, after reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments of paragraph 7. of plaintiffs' Second Amended Complaint. 8. Denied. It is denied that Texaco managed independent gas station businesses through a Star Enterprises/Texaco corporate subdivision named "Star Enterprises." On the contrary, Star Enterprises/Texaco was a separate business entity from Texaco through a joint venture of Texaco and Star Enterprises. With respect to the management of plaintiff's gas station, after reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of that averment. 9. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 10. Denied. It is denied that Star Enterprises was the alter ego of Texaco Oil Company as this is a legal conclusion as to which no responsive pleading is required. Without waiving the foregoing, it is averred, on information and belief, that Star Enterprises/Texaco was a joint venture in which Texaco was one of the two joint venturers. 11. Denied as stated. The franchise agreement, being a writing, speaks for itself. 11 Denied as stated. Defendant McKnight has a copy of the one Star Enterprises/Texaco franchise agreement which plaintiffs provided him. Defendants do not know whether there were more such agreements. 11 Denied. Defendants have not refused any request for return of documents. On the contrary, plaintiffs made no such request. 14. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to admit or deny the truth or falsity of these averments. By way of further answer, plaintiff Hollenbach represented to McKnight in the fall of 1995 that he intended to retire and was looking for someone to acquire his gas station. 15. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 16. Denied as stated. In the fall of 1995, plaintiffs advised McKnight that Muhammad Farooq was interested in acquiring the station. At that time, there was no reference to Mr. Farooq as Indian, Pakistani or Sikh. On information and belief, defendants aver that Mr. Farooq identifies himself as an "American Asian Indian" and that he is a local entrepreneur and real estate investor who had no apparent experience in the management of a gas station. 17. Denied as stated. Plaintiffs had no lease with Star/Enterprises/Texaco. On the contrary, plaintiffs had a franchise agreement, which speaks for itself. The remaining averments of paragraph 17. of plaintiffs' Second Amended Complaint are denied for the reason that, after reasonable investigation, defendants do not have knowledge or information sufficient to form an opinion as to the truth or falsity thereof. 18. Denied as stated. Presuming that the lease was in writing, it speaks for itself. 19. Admitted in part. Denied in part. It is admitted only that plaintiff was making monthly payments to Star Enterprises/Texaco at the time plaintiffs retained defendants. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments of paragraph 19. of plaintiffs' Second Amended Complaint. 20. Denied. The averments of paragraph 20. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required, 4 21. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 21. of plaintiffs' Second Amended Complaint. 22. Denied as stated. The franchise agreement, being a writing, speaks for itself. 23. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 23. of plaintiffs' Second Amended Complaint. 24. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 24. of plaintiffs' Second Amended Complaint. 25. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 25. of plaintiffs' Second Amended Complaint. 26. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 26. of plaintiffs' Second Amended Complaint. 27. Denied as stated. In March 1996, plaintiff Hoilenbach consulted with defendant McKnight about the failure to Texaco to agree to the transfer of the gasoline station franchise to Mr. and Mrs. Farooq. 28. Denied as stated. Defendant McKnight advised plaintiffs only that they might have a cause of action against the franchisor for failure to approve the transfer if there was no basis for such conduct under the franchise agreement and applicable state and federal law. Defendant McKnight never expressed any opinion as to whether the actions taken by the franchisor were a result of the ethnicity of the proposed transferee or assignee as he had no basis for so opining. 29. Denied as stated. Defendant McKnight advised plaintiffs only that they might have a cause of action against the franchisor for failure to approve the transfer if there was no basis for such conduct under the franchise agreement and applicable state and federal law. 30. Denied as stated. Defendant McKnight agreed to represent plaintiffs to explore any rights which they might have as a result of the franchisor's conduct and to preserve those rights should there be any. 31. Denied as stated. Plaintiffs did not sign a contingent fee agreement. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments of paragraph 31. of plaintiffs' Second Amended Complaint. 32. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 32. of plaintiffs' Second Amended Complaint. 33. Denied. It is denied that defendant McKnight did not respond to plaintiffs' letters and telephone calls. On the contrary, defendant McKnight responded to all such calls and letters. 34. Denied as stated. It is admitted only that plaintiff sought new counsel. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments of paragraph 34. of plaintiffs' Second Amended Complaint. 35. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 35. of plaintiffs' Second Amended Complaint. 36. Denied as stated. The Petroleum Marketing Practices Act, a statute, speaks for itself. The remaining averments of paragraph 36. of plaintiffs' Second Amended Complaint constitute legal conclusions to which no responsive pleading is required. 37. and 38. Denied. The averments of paragraphs 37. and 38. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 39. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 39. of plaintiffs' Second Amended Complaint. 40. and 41. Denied. The averments of paragraphs 40. and 41. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 42. Denied. After reasonable investigation, defendants do not have knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 42.of plaintiffs' Second Amended Complaint. 43. Admitted. 44. Admitted. 45. Admitted. 7 46. Admitted. 47. Admitted. 48. Admitted. 49. and 50. Denied. The averments of paragraphs 49. and 50. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 51. Admitted. 52. Admitted. 53. Denied. The averments of paragraph 53. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 54. Admitted only that defendant did not file any federal court complaint on behalf of plaintiffs. 55.-60. Denied. The averments of paragraphs 55.through 60., inclusive, of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 61. Denied as stated. It is denied that no service was made upon Star Enterprises. Service was made on March 16, 2000. 62. Denied. The fee to the sheriff was paid on or about August 14, 1998. 63. - 65. Denied. The averments of paragraphs 63. through 65., inclusive, of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 8 COUNTI 66. Defendants incorporate by reference their responses to paragraphs 1. through 65., inclusive, of plaintiffs' Second Amended Complaint as though set forth at length herein. 67.-71. Denied. The averments of paragraphs 67. through 71., inclusive, of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin, McKnight & Hughes demand entry of judgment in their favor and against plaintiffs Charles Hollenbach and Dianna L. Hollenbach, with costs. COUNT II 72. Defendants incorporate by reference their responses to paragraphs 1. through 71., inclusive, of plaintiffs' Second Amended Complaint as though set forth at length herein. 73. Denied. The averments of paragraph 73. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin, McKnight & Hughes demand entry of judgment in their favor and against plaintiffs Charles Hollenbach and Dianna L. Hollenbach, with costs. NEW MATTER On or about January 22, 1996, plaintiffs and Mahammad U. Farooq and Talat Farooq (hereinafter "Faroogs") entered in an Agreement with respect to the transfer 46. Admitted. 47. Admitted. 48. Admitted. 49. and 50. Denied. The averments of paragraphs 49. and 50. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 51. Admitted. 52. Admitted. 53. Denied, The averments of paragraph 53. of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 54. Admitted only that defendant did not file any federal court complaint on behalf of plaintiffs. 55.-60. Denied. The averments of paragraphs 55.through 60., inclusive, of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 61. Denied as stated. It is denied that no service was made upon Star Enterprises. Service was made on March 16, 2000. 62. Denied. 63. - 65. Denied. The averments of paragraphs 63. through 65., inclusive, of plaintiffs' Second Amended Complaint constitute legal conclusions as to which no responsive pleading is required. 8 of their interests in their Star Enterprises franchise. A true and correct copy of that Agreement is attached hereto, as Exhibit "A." 2. On or about January 22, 1996, plaintiffs and the Farooqs entered into an Addendum to Agreement of Sale. A true an correct copy of that Addendum to Agreement of Sale is attached hereto, as Exhibit "B." 3. That Addendum provided, in relevant part: "Phis offer is contingent upon a new Lease Negotiated with Texaco Oil Co. (Lessor)." 4. On or about Apri 15, 1996, the Farooqs tendered a General Release to plaintiffs by which they agreed to accept return of their $3000 in return for a general release of all persons and claims arising from the Agreement of Sale. 5. On or about July 25, 1996, Mahammad U. Farooq and Talat Farooq filed suit against plaintiffs in the Court of Common Pleas of Cumberland County at No. 96- 6529. Judgment was entered, and an appeal filed. In response to the rule filed by plaintiffs, a complaint was filed. A true and correct copy of that complaint is attached hereto, as Exhibit "C." 6. On or about January 23, 1997, plaintiffs filed a complaint (hereinafter "1997 Complaint") against Mahammad U. Farooq and Talat Farooq at No. 96-6529. A true and correct copy of that complaint is attached hereto, as Exhibit "D." In the 1997 Complaint plaintiffs claimed that, as a result of the Farooqs' conduct, plaintiffs suffered a loss of $113,000. 1997 Complaint 110. 8. In the 1997Complaint plaintiffs averred, in relevant part, that "[tlhe defendants contacted Star Enterprise and were found to be eligible to enter into a new Franchise Agreement and offered a contract. The terms of the contract were similar to 10 those offered all prospective purchasers of a franchise by Star Enterprise at the time." 1997 Complaint $ 6. 9. In the 1997 Complaint plaintiffs further averred that "[o]n or about March 31, 1996, the defendants elected to terminate the Agreement of Sale with the plaintiffs because they did not like some of the terms of the agreement with Star Enterprise." 1997 Complaint 17. 10. In the 1997 Complaint, plaintiffs further averred that : "The defendants knew, or should have known, when they entered into the Agreement of Sale that Star Enterprise had standard terms for new franchises which could not be altered. To wait until the end of March 1996 to decide they did not like those terms severely prejudiced the plaintiffs who were unable to find another purchaser before their Franchise Agreement with Star Enterprise ended on May 31, 1996." 1997 Complaint 18. 11. In the 1997 Complaint, plaintiffs further averred: "The decision of the defendants to terminate the Agreement of Sale and not proceed with the purchase of the plaintiffs' business constituted a breach of contract which damaged plaintiffs." 1997 Complaint 19. 12. At no time did either plaintiffs or the Farooqs assert in that lawsuit that any failure to fulfill any of the terms of the Agreement of Sale arose by reason of any discriminatory conduct by Star Enterprise and/or Texaco. 13. On or about March 17, 1997, plaintiffs and Mahammad U. Farooq and Talt Farooq entered into a Mutual Release, which provided, among other things, for a plaintiffs to retain $1900 of the deposit made pursuant to the agreement of sale, amounting to a small amount of the $113,000 damages which they claimed to be due 11 them. The Farooqs retained $1100 of the deposit paid to plaintiffs. A true and correct copy of that release is attached hereto, as Exhibit "E." 14. That release specifically provided that it "does not apply to any other parties or claims they may have against third parties related to the subject of the litigation." 15. Plaintiffs' claims against defendants were not then by the statute of limitations for failure to act. 16. Alternatively, plaintiffs' claims are barred by the later bankruptcy (as averred below) or by plaintiffs' engagement of Robert P. Reed, Esquire in March 2000, in which they attempted to continue with their litigation against Star Enterprise . 17. On or about November 17, 1999, plaintiff Charles Hollenbach filed a Chapter 7 bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania, docketed at Number 99-04891. 18. In his bankruptcy petition plaintiff Charles Hollenbach declared that he had no assets and failed to disclose any claims against Star Enterprises/Texaco and/or the defendants in this action. 19. On March 13, 2000, plaintiff Charles Hollenbach obtained a discharge from all liabilities of his creditors. 20. The bankruptcy filing and discharge had the effect of extinguishing all of the claims asserted by plaintiff Charles Hollenbach in this action. 21. Plaintiffs' claims against defendants are barred by judicial estoppel by plaintiff Charles Hollenbach's failure to schedule those claims in his bankruptcy. 12 22. In any instance, as franchisees, plaintiffs had no right to make any claim against the franchisor for failure to agree to any extension or transfer of their rights to others, whether based upon any alleged discrimination or not. 23. Further, to the extent that plaintiffs had any such rights, they were extinguished by the settlement of their claims against the Farooqs. 24. Insofar as plaintiffs claim that they suffered any damages or loss as a result of the conduct of Star Enterprises/Texaco, plaintiffs failed to mitigate their damages. WHEREFORE, defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes demand entry of judgment in their favor and against plaintiffs Charles Hollenbach and Dianna L. Hollenbach, with costs. P M sock & H6ffman, P.C. 1818 arket Street 13`h Floor Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendants Marcus McKnight, Esquire and Irwin McKnight & Hughes (now known as Irwin & McKnight) Dated: November , 2005 13 VERIFICATION Jeffrey B. Albert, Esquire, Counsel for Defendant, hereby verifies that the foregoing Defendants' Answer to Second Ameded Complaitn with New Matter is true and correct to the best of his knowledge and belief. This Verification is made pursuant to the provisions of 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. Dated: November 21, 2005 CERTIFICATE OF SERVICE I, JEFFREY B. ALBERT, ESQUIRE hereby certify that on November 21, 2005, a true and correct copy of the foregoing Defendants' Answer to Second Amended Complaint with New Matter was delivered by United States First-Class Mail, postage prepaid, as follows: Kevin William Gibson, Esquire GIBSON & PERKINS, P.C. 200 East State Street, Suite 105 Media, PA 19063 Dated: November 21, 2005 I xklbf A _ ?.?.. eau uu atiaau This form recommended and approved for, but not restricted to, use by members of the Greater Harrisburg Association of REALTORSO FOR SELLER USELLER AGENT FOR BUYER [PA,G A. LICENSED BROKER PA. LICENSED BROKER PA. LICENSED B?ROaKEER This Agreement made this 7__. ay of A3, b4ll 1. PRINCIPALS Between, ,,- ?[4. f n 1 ?a n ) (residing at - T'T?TT°Ta hereinafter called Seller, and (residing at ) hereinafter called Buyer. .,St?A? fCi.. p}"?s"????'',^t )I"?-;y''A 2. PROPERTY: Seller hereby agrees to sell and onve o Buyer,'Nlfd fi' r)l a rees to rchas r: L T A C N I of or piece of ground with buildings and iprovr)mentslhereon erGr?.e if,a?;;, knowtf 3. ZONING: Zoning Classification r ' Failure of this Agreement to contain the zoning da ifica I n ep i cases where the prop rt (r each parcel thereof, if subdividable) is zoned solely or primarily to permit single-family dwellings shall render this Agreement voidable at the option of the Buyer and if voided deposits tendered by the Buyer shall a eturned t the Bu r wN ut. re ' ement of court action. 4. TERMS: (a) Purchase Price to be paid by the Pg,-r as follows: (b) DEPOSIT Cl Cash ?, Note 0 at the signing of this $ (?. t [) I agreement, receipt o which is hereby acknowledged ..... ... ..... ......... If Note;,to be redeemed on or before. the day of , 19- (c) ADDITIONAL DEPOSIT due on or before the U? day of 19_ .................: $? (d) BALANCE OF PURCHASE PRICE at settlement (cash, certified check, and/or mortgage funds) ..,..... .... .... '-- $$ Ll -- TOTAL $ 4 j.(e) Written approval of Seller to be on or before the day of Settlement to be made or before the - - day 19 Cr) ( (g) The following shall apportioned pro-rata as and at time settlement Taxes l ed and !use -mil, rents, interest m rtga assumptions, condominium fees and homeowner association fees if any, water and/or sewer rents ts if any, together with any other Bel municipal services. All Realty ?Transfer Taxes shall be divided evenly unless otherwise provided herein. 5. PROPERTY SETTLEMENT CONTINGENCY% This agreement is subject to the settlement of Buye 's property located at I((X& ' on or hen 6. FINANCING CONTS ENCY: This agreement is ub?yJ4fct to the?.financing as ?2 J .? (a) PRINCIPAL AMOUNT V r-tLP J-N [fl`7YP?.;.?'N,.1v1rlT / MINIMUM TERM / ?1 ?Ielj` MAXIMUM INITIAI? -•? INTEREST RATE. ?Q)s.f .41l TOTAL POINTS, INCLUPfNG LOAN ORIGINATION FE£T7BE PAID BY THE BUYER: TERMINAL DATE for Obtaining Financing Commitment rOil I ) 2 F'3L A/ ( " Broker may advise Buyer of possible sources of mortgage funds, but cannot ass me reeponshilit far obtaining %yet s mortgagejf said loan cannot be obtained as herein provided, this Agreement shall be NULL AND VOID and all depo3it monies shell be returned to oul er-on or before date of settlement as provided herein, subject however to the provisions in Paragraphs 6(b) and 6(c). < " (b) Buyer shall maBe,a completed application to ii responsible lending insntsm6n for the said loan within calendar days from, the Seller's approval: hereof. Should the.Buyer fail to make suchcompleted application within the specified time, it shall be at the nnnnn „r rt.. c u ...•.-- " (i) bectase this Agreement NULL AN" vrvn ••.t,-? •'--- ?? --ACK aeKro? ?ADDENDUM TO AGREEMENT .Of sA E Agreement Is made this ?G day of ? ,p 191-(C-, by and between - - hereinafter known as Seller(s) and hereinafter known as Buyer(s), both qs regard the property situate at (? } ,`?_ ?1(?= Pennsylvania. This Addendum shall be attached to and made a part of Agreement of Sate dated (7 7 19py and between the putkt herein. ,(} / IT IS AGREED F LLO S:G 1 1 (: ?? ?P -?'3?1 ° L.?fx?-SL` (S f wi-- lc F: ZIP n ` 17, 1 W A- y } A ? 1 4J ? F ?CI?H f?11VGfl nAte* ADDENDUM TO AGREEMENT OF SALE MA?iOa /? ?pI . 19 , by and between _T pi Ar Agreement Is m de this 2Z,day of 6?Lt Aj `>f s o 11 d o eC' J _• qh hereinafter known as Sealer(s) an }} j hereinafter known as Bvyet(s), both as regard the property situate at Q Q Pennsytvanla. This Addendum shall. be attached to and made a part of Agreement of Sale dated _ZQf(y l -2,1 1" by and between the parties herein, IT IS AGREED AS FOLLOWS: ... Il?u ,l /t Witness: ate: 1 (Buyer) Date: - 2-z-9 1 ---- -z2- (Buyer) Da te: JAOK ADDENDUM TO AGREEMENT OF SALE Agreement is made this daY f 19, by and between ? ?yf Y t? t d?' herefhatter known as Seller(s) and r / hereinafter known as Buyer($), both as regard the property situate at r This Addendum shall be attached to and made a part of Agreement of Sale dated - herein. :. „ i r?A ,Ls '? j.,?! [ +ir ilf "J L krev `t' f.? IT IS AGREED AS FOLLOWS: i'r rn Y vi ,rimer el- z N inn s s ii MOHAMMAD U. FAROOQ AND TALAT FAROOQ PLAINTIFFS; vs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION CHARLES HOLLENBACH AND NO: 96-6529 DIANA MORROW DEFENDANTS: 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 days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Fourth Floor, Cumberland County Courthouse, Carlisle, Pennsylvania 717-240-6200 TRUE COPY FROM RECORD In Testimony whered,_I here untO set nN hand and the s of satd COu at CarttProt MOHAMMAD U. FAROOQ AND TALAT FAROOQ PLAINTIFFS vs CHARLES HOLLENBACH AND DIANA MORROW DEFENDANTS: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 96-6529 COMPLAINT 1. Plaintiffs are purchasers, husband and wife, who reside at 22 Sunfire Avenue Camp Hill, Pennsylvania 17011. 2. Defendants who reside at 112 Sherby Lane Shermans Dale, Pennsylvania 17090, were co-lessee of a Texaco Gas Station and Mini- Mart, located at 1101 Lowther Road, Camphill, Pennsylvania. 3. On January 30, 1996, plaintiffs entered into an agreement of sale with Defendants for the purchase of a lease for the business property (Texaco Gas Station and Mini-Mart) located at 1101 Lowther Road, Camphill, Pennsylvania. A true and correct copy of the agreement is attached hereto as Exhibit "A" and incorporated herein. 4. Pursuant to paragraphs FOUR and ADDENDUM ONE THROUGH TEN of the agreement of sale, the plaintiffs gave to defendants' duly authorized agent, Mr. Ernest K. Pace, the sum of $ 3000.00 as a deposit toward the purchase price. 5. Settlement on the lease was to be made on or before April 1, 1996 subject to plaintiffs' ability to negotiate a new lease with Texaco Oil Company, as set out more specifically at paragraph Four of the addendum of the agreement of sale ( See Exhibit "A"). 6. In compliance with paragraph Four of the addendum of the agreement of sale, plaintiff began lease negotiations with Star Enterprises within the prescribed time period. Plaintiffs at all times, and to the best of their ability, supplied complete information to Star Enterprises for the purpose of obtaining a lease in accordance with the terms and conditions of the agreement of sale. 7. On or about March 15, 1996, plaintiffs received a verbal reply from Star Enterprises notifying Plaintiffs the amount of the monthly payment for the lease which exceeded the amount the Plaintiffs budgeted for a lease amount. Star Enterprises stated their offer was firm and non-negotiable and that no guarantee for a lease renewal after expiration of the current lease was possible. 8. The Plaintiffs notified the Defendants and Star Enterprise With letters dated March 19, 1996 that negotiated lease could not be completed as required in paragraph Four of the addendum of the agreement of sale. 9. Although plaintiffs sought the return of the deposit monies from Defendants by making demand upon their duly authorized agent Mr. Ernest K Pace, agent for Jack Gaughen Realtor, have refused to authorize their agent to return the deposit to plaintiffs. 10. The refusal of Defendants to direct Jack Gaughen Realtor to release plaintiffs' funds in accordance with the agreement is vexatious and demonstrates a reckless and wanton disregard of plaintiffs' rights. 11. As a result of defendant's arbitrary, vexatious and wanton conduct, plaintiffs have incurred legal fees in their attempt to obtain the return of their deposit from defendants. WHEREFORE, plaintiffs pray for judgment against defendants in the amount of $3000.00 plus interest, costs and t rney fees / ervin D. Smith Attorney for Plaintiff Pa. I.D.# 72677 30 Valley Drive R.D.#3 Annville, Pennsylvania 17003 (717) 838-8393 VERIFICATION I, Mohammad U. Farooq, verify that the statements made in the attached complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Mohammad U. Farooq, Plaintiff •.... ravrz.una.a:I? a Aaarrs?.-tea, oa-aa u'u1 S'Le orm Tecapunende? APd?YSAk t'9r?, byh pot r a='t?F:k" ":r '? by members of thAldreater••ctP'Ity wrI Assoclanoilcol AGENh`FOR SELLER SUB AGEIZIT,FOR SELI F,& ; PA. LICENSED BROKER PA. LICENSED ?B-ROOKER This Agreement made this "Z ay of 1. PRINCIPALS Between, ... (residing.at 0'? oa?e 14 NJ ^ hereinafte called Seller; and .._.,.(residing-It r -n\ '. bereinaftet called Buyer. 22• S N'? i n... ?9v 1 ) '?-- ,i?P_ROPER : Seller hereby, agrees to sell and onve to Buyer, y agrees to 3:-ZONING?Zoning Classification- "'F'aitureq ???ItLS Agreement to contain thezoning cl ifica t n --i's or primarily to permit sm&l.e-family dwellings shall - deposits 14dered-bytthe Buyer Shall • e returned t the Ba qr v 3 GERMS:""--(a)_Purchase•1?rice ?? cases r this ESTATE " "EXHIBIT A" YH. LIl.C.1VJC1J BKVKt'.K / 19. MAIN Lot or piece rrSpVrty (or each parcel thereof, if subdividable) voidable at the option of the Buyer and if voided of court action. (9?? to be paid by the Pp& as follows: (b) DEPOSIT Chic6AL Cash ?, Note O at the signing of this agreement, receipt o which is hereby acknowledged .... ......... ....... ... ...... $ 4 C) 12 If Note• to be redeemed on or. before the. day of 19 - (c) ADDITIONAL DEPOSIT due on or before the day of ,. - .. 19 . (d) BALANCE OF PURCHASE PRICE at settlement (cash, certified check, and/or mortgage funds).......... .".: n.. .. ;:.... T r/,-)1 J. 00 / TOTAL . $v v . (e)- Wnttm approval of Seller to be on or before the -SC _ day of t 19 -L? (I)" ineo in be made or before We dny of 19_?y (?? (g) The The f following shall be apportioned pro-rata as and at time of s my, toe Taxes as any oand assessed, rents, interest dfi mortgage ass fer s• condominium tees .. and homeowner association fees if any, water and/or sewer rents if f any, together with any other lirnable municipal smites. All Reap/Trans Transfer Taxes shall be divided evenly unless otherwise provided herein. 5. PROPERTY SEITLNT CONTINGENCY: This agreement is subject, to the settlement of Buy 's property located at 771- on or be4r, , 6. FINANCING CONTI ENCY:This agreement is/¢ub??'J?ct to the fnang}af;jy#s'.J (a) PRINCIPAL AMOUNT r l) l u tx+ ' E M, I`NIMUM TERM _?- MAXIMUM INITI_ INTEREST RATE Sf[,[bCL u I TOTAL POINTS, 1NCLUD G LOAN ORIGINATION FEyr TO BE PAID BY THE iUsAlk _ r TERMINAL DATE for Obtanmg Financing Commitment Broker may advise Buyer of possible-sources of mortgage funds, but not as a responssbllu for 6btaining Byer s mortgage maid loan capoeCbe ob[ainec K. r+• '•R` as herein pkevided; this Agreement shalPbe NULL AND VOID and all depo momS;,shall.be returned. to th' But or before daiiof settlemqueas provided- ufn subject however)Bihe provisions in Para?phs 6(b) and 6(c)._ - _ - - - , , ? „-- ?; (b) completed ne, it shall be at it on account win be sys therearter to: to the Rules and to Seller as VOIn-the condition and contingency provided for in this Paragraph, t6/11 6a VSH (7tl35)-? Otl35) AB 1N3OV a 2(S/ 1o Asp oi ?n'9-- styl op d claray !MT3S All 7VAORddV (-IV3S) -- a3AHB --agaane of SV SsaNum f? . , '. - (1V3S1 -' lftG iD r • 1 / -y-iyryyyv?• y'p?y?, ll3Af .b 19 l r RAM 01 Stl $S IAN vmrum anoge lsnJ reaA pue ayl seas Pug spuey saayl acts rapunaray aney •6gany Ppno9.(IIuBaI aq of 8mpualaf `otauy sapred a 0W12_.ssgu_ffl y I:R3AI19A83VAOaddV 'uuol Iaurguo m sapred Ile Aq paugrs asam n OMNI[] se ualjo 9ullmiq Pug AtT.quaaaolua fool aures ayl aneq Ipya slledulunoa yans pue magmm (XVd) apmasaa,I a 48nosyl uoassamsuzu in ,(em Aq palangap pm, soared atp Aq "clsamnoa a)dp)nm ua pomaaaa aq Aem,masayt smompuame tae poa w2ursooti nqi :tuasrrarnS aad •damope mo,f linsuoa 'poolsiapun Ion 11 !j38jjuo3 Sulpulq X118841 8 sl Slgy qJACK MA ! Agreement Is made A-}DDENDJlI1AT? O AGREEMENT OF SALE , rte. day of Aye'l , 19_1-. by and belweeh hereinafter known as Seller(s) and r " fU 1'!' TT IF r\ M/ hereinafter known as 6uyer(c), troth as regard the property situate at _ This Addendum shall be attached to and made a part of Agreement of Sale dated herein. IT IS AGREED AS FOLLOWS: ? N V? L 6&S 6- (? n J./ 1T pennayhrads. 19v by and between the POO" --?? l -+,s 3? 1 U IZJJ CD SA •1 Y ` 2fi'Yi'S?.t'?'(? r ` <?,U v( 4? 76e S' , F)j ilio, f er IC., z t (Seller) 1? ( Date: 1 • R1 - TOO i?lJ?7ZQ J l1 f' ?? C? (Seller) D te: ?- L . n (Buyer) Datei _T (Buyer) Date: Witness: 'zK ? ? ACK .ADDENDUM TO AGREEMENT-.OF SALE Agreement Is made this ? day of ? 4./14 OM'" , 191L, by and between - - -- hereinafter known as Seller(s) and MC) /r, )(Z:, hereinafter known as Buyer(s), both as regard the property situate at? f) /?. ) ?Jf7 i 1 J PannsyWanW This Addendum shall be attached to and made a part of Agreement of Sale dated 19-%J)y and between the pestles herein. W?y??/ I ?1a t TD (?+9?lftit? ?iy SLf (S ? Syr ?` 62 ^J'e't ?' O 6q f?LLON1 Li IT IS AGRE D F 5: i Y Witne lien P), (s tier) Date:- -? (Seiler) Date: PLA-k,n? w.? (Buyer) Date: (Buyer) i Date:_ A-IZ--_T? "_.. .4 MA JACK ADDENDUM TO AGREEMENT OF SALE Agreement is made this 2'Z day of V °4^r Li -is by and between hereinafter known as Seller(s) and 44 - hereinafter known as Buyer(s), both as regard the property situate ?rJ_ 4t' I D I) Pennsylvania, This Addendum shall be attached to and made a part of Agreement of Sale dated 47'4 , t!IM by and between the Perlis' herein. RisAGREEDD,AASS'.j.`?Fy7O?LLOWS: i Witness: (Seiler) Date: M an v.lwo U^^^,wa , U . (Buyer) ! Date AP (Buyer) Date: Date December , 1996 Prothonotary. No. 96-6629 ORDER FOR SERVICE To: Sheriff of Cumberland County Complaint From: Khervin D. Smith, Attorney for the Plaintiff Civil Action 30 Valley Drive R.D.#3 Annville, Pennsylvania 17003 Mohammad U. Farooq and Talat Farooq Plaintiff V. Charles Hollenbach and Diana Morrow Defendant Serve at: 112 Sherby Lane, Shermans Dale, Pennsylvania 17090. Street: Post Office: Township: Special Instructions: This complaint is in response to a NOTICE OF APPEAL. Plaintiffs have no knowledge of the physical location of the defendants other than the address on the appeal notice. Service Was Not Made Because: Date December , 1996 Prothonotary. No. 96-6529 ORDER FOR SERVICE To: Sheriff of Cumberland County Complaint From: Khervin D. Smith, Attorney for the Plaintiff Civil Action 30 Valley Drive R.D.#3 Annville, Pennsylvania 17003 Mohammad U. Farooq and Talat Farooq Plaintiff V. Charles Hollenbach and Diana Morrow Defendant Serve at: 112 Sherby Lane, Sherman Dale, Pennsylvania 17090. Street: Post Office: Township: Special Instructions: This complaint is in response to a NOTICE OF APPEAL. Plaintiffs have no knowledge of the physical location of the defendants other than the address on the appeal notice. Service Was Not Made Because: m x Q 0 CHARLES C. B. HOLLENBACH and DIANNA L. MORROW, Plaintiffs V. MAHAMMAD U. FAROOQ and TALAT FAROOQ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 96-6529 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO DEFEND 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, order and notice are served, by entering a written appearance personally or by attorney and by filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Fourth Floor ; Cumberland County Courthouse ; Carlisle, Pennsylvania 17013 (717) 240-6200 ? -i V AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. CHARLES C. B. HOLLENBACH and DIANNA L. MORROW, Plaintiffs V. MAHAMMAD U. FAROOQ and TALAT FAROOQ, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 96-6529 CIVIL TERM JURY TRIAL DEMANDED COMPLAINT AND NOW, this 23rd day of January, 1997, come the plaintiffs, Charles C. B. Hollenbach and Dianna, L. Morrow, and make the following complaint against the defendants, Mahammad U. Farooq and Talat Farooq, his wife: 1. The plaintiffs are Charles C. B. Hollenbach and Dianna L. Morrow, adult individuals residing at 112 Sherby Lane, Shermans Dale, Pennsylvania 17090. 2. The defendants are Mahammad U. Farooq and Talat Farooq, his wife, who are adult individuals residing at 22 Sunfire Avenue, Camp Hill, Pennsylvania 17011. 3. The plaintiffs listed for sale with Jack Gaughen Realtors their business interest situate at 1101 Lowther Road, Camp Hill, Pennsylvania, which was known as the Highland Park Texaco Station. 4. On January 22, 1996, the plaintiffs and the defendants entered into an Agreement of Sale dated January 22, 1996, a copy of which is attached hereto and made a part of this Complaint and is marked as Exhibit "A". 5. At the time the parties entered into the Agreement of Sale for the purchase of the business, the defendants were informed that the sale of the Texaco franchise had to be completed by May 31, 1996. On that date, the Franchise Agreement between the plaintiffs and Star Enterprise (Texaco) would expire. 6. The plaintiffs acted at all times in good faith with the defendants. The defendants contacted Star Enterprise and were found to be eligible to enter into a new Franchise Agreement and offered a contract. The terms of the contract were similar to those offered all prospective purchasers of a franchise by Star Enterprise at that time. 7. On or about March 31, 1996, the defendants elected to terminate the Agreement of Sale with the plaintiffs because they did not like some of the terms of the agreement with Star Enterprise. 8. The defendants knew, or should have known, when they entered into the Agreement of Sale that Star Enterprise had standard terms for new franchisees which could not be altered. To wait until the end of March 1996 to decide they did not like those terms severely prejudiced the plaintiffs who were unable to find another purchaser before their Franchise Agreement with Star Enterprise ended on May 31, 1996. 9. The decision of the defendants to terminate the Agreement of Sale and not proceed with the purchase of the plaintiffs' business constituted a breach of contract which damaged the plaintiffs. 10. The damages sustained by the plaintiffs as a result of the breach of contract consist of the following: a. The loss of the sale price of Seventy-Eight Thousand and no/100 ($78,000.00) Dollars; b. The cost of the inventory in the amount of Thirty-Five Thousand and no/100 ($35,000.00) Dollars; and c. Interest on the sale of the business and the inventory at the legal rate of interest from March 31, 1996. 11. The plaintiffs have been unable to mitigate their damages as set forth above which total One Hundred Thirteen Thousand and no/100 ($113,000.00) Dollars, plus interest. WHEREFORE, the plaintiffs demand damages form the defendants in the mount of One Hundred Thirteen Thousand and no/100 ($113,000.00) Dollars, with interest from March 31, 1996 and the costs of this action. By: Respectfully IRWIN, McKWGIJ.T, & ff McKNt, IIl s C. B. y or Play tiffs, Ch rtes es C. B. bach and Diann Morrow 60 West Pomtket?3freet Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. #25476 Date: January 23, 1997 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel and me in the preparation of this action. The language of the Complaint may in part be the language of my counsel and not my own. I have read the statements made in this Complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the statements are that of counsel, I have relied upon counsel in making this verification. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. 2" ? f3 CHARLES C R HOLLENBACH Date: January 23 , 19 97 Exhibit "A" me uy urcruuels of me greater t'tarnsburg Association of REALTORS® AGENT FOR SELLER SUB AGENT FOR SELLER AGENT FOR BUYER PA. LICENSED BROKER PA. LICENSED BROKER PA. LICENSED BROKER This Agreement made this PRINCIPALS Between, L. s (residing at ` hereinafter called Seller, and (residing at hereinafter called Buyer. PROPERTY: Seller hereby agrees to sell and of ground with buildings and iInprovgments ZONING: Zoning Classification _ Failure of this Agreement to contain is zoned solely or primarily to permit deposits tendered by the Buyer shall TERMS: (a) Purchase Price the of 19 !L . r,4w-No thereby agreeso h'?asALL T AT?C !}?A1N Lot or piece if any, knoweO. Ate-, :pt Iif cases render this lydpYrt§ (dr each parcel thereof, if subdividable) voidable at the option of the Buyer and if voided of court action, ($ ? ?,t O O Cat- ? ) .r-s t r p to be paid by the ¢uyer as follows: (b) DEPOSIT Check,5 Cash O, Note O at the signing of this agreement, receipt o} which is hereby acknowledged ......................................... . If Note, to be redeemed on or before the day of , 19_. (c) ADDITIONAL DEPOSIT due on or before the day of 19_ .................. (d) BALANCE OF PURCHASE PRICE at settlement `/ ,.% I J r) 0 _.? (cash, certified check, and/or mortgage funds) ................................................... $ ( :Y TOTAL $ 0 .?ff ... ?, an ,(e) Written approval of Seller to be on or before the day of ? 19 v (t) Statement to be made on or before the / day of I9? (g) 'rite following shall apportioned pro-rata as and at time settlement Taxes as 1 'y other i assessed, rents, Interest no mortgage Realty assumptions, condominium tees and and homeowner association on fees tees if if any, water and/or sewer rents ts it any, together with any other lienable municipal services. All All ReaIt lty Transfer Taxes shall be divided evenly unless otherwise provided herein. S. PROPERTY SETTLEMENT CONTINGENCY: This agreement is subject to the settlement of Bu ye •s property located at rY !d ftt/I on or bef e ? 6. FINANCING CONTINGENCY: This agreement is subject to the financing as,tgll sy5: `{ 8 ?d?l.sv.(• 1-NVVJJ,jl s//i C1?r,N/LJ:,? r `.Tr (a) PRINCIPAL AMOUNT _ YPE MINIMUM TERM < MAXIMUM INITIALy F /' ' INTEREST RATE ?i land %u fA(IXM TOTAL POINTS, INCLUDING LOAN ORIGINATION FE TO BE PAID BY THE BUYER; TERMINAL DATE for Obtaining Financing Commitment -"tsiQ wy/? t,- 5-x'7 - I ff Broker may advise Buyer of possible sources of mortgage funds, but cannot assume responsibility'for obtaining Bayer's mortgage. If said loan cannot be obtained as herein provided, this Agreement shall be NULL.AND VOID and all deposit monies shall be returned to the Buyer on or before dale of settlement as provided herein, subject however to the provisions in Paragraphs 6(b) and 6(c). -'/ rhl Buver shall make a completed application to a responsible lending institution for the said loan within Y calendar days from the Seller's approval hereof. I. I . - - .. -„ - -..?. ?..,...? .,r rh. grlle.. within five f51 calendar days thereafter to: ka) . I arc preuusen tire to be conveyed in fee simple Iry special vision I y deed, Iree mad clear Or;) ll licus, cocks mbr noes and casements, EXCEPf I NC; I IOW IsVI;It, the hollowing: lisistiuq building resrictions, ordinances, caxrnaeuls of roads, privileges or rights of public service companies, if any; or easements or a'eshiclions sisiblc upon ale ground, .(lienvrse the title to the above described teat estate shall be good and marketable to such as will be insured by a separatde title insinuate cawpauy at the regular rides. (b) The Buyer will pay for the following: (if 'fire prenaiuna Ion title insurance, mechanics lien insmance and/or title search, or fee for cancellation or same, if any. (ii) Tlm premium for Bond insurmre and/or lire insurance with esteuded coverage, insurance Louder stooges or cancellation fee, if any. (iii) Appraisal fees and charges paid in advance to morlgagee, if any. (iv) Buyer's normal settlement costs and accruals unless otherwise stated herein. (c) Any survey or surveys which may be required by the.'rule Jnsurauce Company or Lite abstracting attorney for the preparation of an adequate legal descionion of the premises (or the correction (hereof), shall be secured and paid for by the Seller. However, any survey or surveys desired by the Buyer or required by his mortgagee shall be secured and paid for by the Buyer. (d) fn the event the Seller is unable to give a gout] and marketable title or such as will be insured by a reputable title Company, Subject as aforesaid, Buyer shall have rile option of taking such title as the Seller call give without abatement of price or of being repaid all monies paid by Irie Boyer to the Seller on accoan of the purchase price and the Seller will reimburse the Buyer fur any costs incurred by the Buyer for those items specified in paragraph 12(b) items (i), (ii), Bii) and in Paragruplt 12(c): and in the latter event there shall be no further liability or objection on either of (he parties hereto and this Agreement shall become NULL AND VOID. Il. PAYh1EN"F OF DEPCLSI II Deposits, regardless of the front of payment and the Lesson designated as payee, shall he paid to Agent for the Seller, who shall retain them in an escrow account until consummation or scintillation of this Agreement in conformity with all applicable laws and regulations. Agent for the Seller may, at his or her sole option, hold any uucashed check tendered as deposit, lauding the accepmnce of this offer. If there is a dispute between Ilse Buyer and the Seller over who is entitled to the deposit, Agent will not be responsible to resolve that dispute and will not be liable to either Buyer or the Seller for refusing to release the deposit without an adequate written agreement between Buyer and Seller oa a valid court order. Buyer and Seller agree that, in the event the Agent and/or Subagent are/is joined ill litigation for the return of deposit monies, the Agent's and/or Subagent's reasonable attorney's fees and costs will be paid by the party joining the Agent or Subagent. 14. POSSESSION AND 'IENDLR: (a) Possession is to be delivered by deed, keys and plry'sical possc,,L.. to a vacua building (if any) at day and time of settlement, of by deed and assignment of existing lease(s) at the time of serhosent it premises is [courts occupied at tine starting of this Agreement, unless otherwise specified herein. Buyer will acknowledge existing leases) by initialing said ]easels) at time of signing of this Agreement of Sa1r if tenant occupied. (b) Seller Al wnot corer Lou any new leasers), written extension of existing lease(s), if any, or additional lease(s) fur the pre .u is" without express written consent Of the hive'. (c) Formal tender of au executed decd and purchase mouev is hereby waived. (d) Buyer reserves the tight to make a presettleoea inspection of the subject promises, and will execute appropriate docwneutatiou el' svmh iusPecliuu. 15. RISK 017 LOSS: (a) Seller trials maintain tlse property (including all items mentioned in paragraph #1 1 hereio) and any personal property specifically scheduled hCeirt in its lacteal condition, normal wear and [ear excepted. (b) Seller shall bear risk of loss limit fire Or Other casualty until tittle of settlement, In the event of damage to the property by fire or other casualty, Buyer shall have the option of rescinding, this agreement and receiving hand money paid on account or of accepting the property in its [lieu condition with the proceeds of any insurance recovery obtainable by Seller. Buyer is hereby notified that lie may insure his equitable interest in this property as of the little of the acceptance of this agreement. 16. REPRESENTA'[IONS: 11 is understood that Buyer has inspected the property, or hereby waives the right to do so and he/she has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller or any other officer, partner or employee of Seller, or by lire agent of the Seller on any Of the lacer's salespercsons and employees, of by a cooperating Broker, if any, or any of his/her salespersons and employees and (hat he/she has agreed to purchase it in its present condition unless otlnerwise specified herein and further acknowledges link the aforementioned parties are not qualified to render an Opinion inn construction, ci gineering, or environmental matters and that the buyer has been advised that he/she may require or wish to seek the assistance of experts in those fields. It is further understood [hat this Agreement contains the whole agreement between the Seller and Buyer and there are no other terns, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning (his sale. Furthermore, this Agreemenl shall not be altered, amended, changed or modified except in writing executed by the parties hereto. 17. RECORDING: This agreement shall not be recorded in the Office for the Recording of Deeds or in any other office or place of public record, and if Buyer shall record this agreement or cause or permit the Sallie to be recorded, Seller may, at his/her option, elect to treat such act as a breach of this agreement. 18. ASSIGNMENT: 'I'bis Agreement shall be binding upon [he respective heirs, executors, administrators, successors and, to the extent assignable, oar the assigns of the parties herein, it being expressly understood, however, that the Buyer shall not transfer or assign [his Agreement without the written consent of the Seller being first obtained. 19. NON-LIABILI'I V OF AGENT: Except as may be provided by a separate agreement or addendum to this Agreement, Agent(s) or Sub-Agent(s), if any, are representing Seller, 1101 the Buyer. If is expressly understood and agreed between the parties hereto that Lite herein canted agent, his/her salespersons and employees or any officer or partner or agent and any cooperating broker and his/her salespersons and employees and any officer or partner of Irie cooperating broker are acting as agent only in bringing the Buyer and Seller together, and will in no case whatsoever be held liable jointly or severally to either party for the performance of any incur or covenant of this Agreement ur for damages fur the nonperl'oru[ance thereof, 20. DEFAULF - TIhIE IS OF'I'l1E ESSENCE:'[ lie said lime for settlement and all other hens referred to for the performmnce of any of the obligations of this Agrecmeal are hereby agreed to be of the essence of this Agreement. Should the Buyer: (a) Fail to make any additional payments as specified in Paragraph 4, Bo Furnish false or incomplete information to the Seller, the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fall to sou Pera[e in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (c) Violate art fail to full"ill and perform any of [Ire terms or conditions of this Agreement, then in such case, all deposit monies and other suns paid by the Buyer on account of tine purchase price, whether required by this Agreement or not, may be retained: (if by the Seller on account of the purchase price, should the seller demand the full purchase price, or (ii) as monies to tie applied to the Seller's damages, or (iii) as liquidated damages for such breach, as the Seller may elect, and in the event that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 20(c)(iii), Lite Seller shall be released from all liability or obligation as this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery bind exists to reimburse any persons who has obtained a filial civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has been triable to collet( the judgement after exhausting all legal and equimble ren¢dies. For coo- . DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP THUS DISCLOSURE RECOMMENDED AND APPROVED FOR, BUT NOT RESTRICTED TO USE BY MEMBERS OF TILE GREATER IIARRISBURG ASSOCIATION OF REALTORS* When you enter into a discussion with a real estate agent regarding a real estate transaction, you should, front the outset, understand what ,pe of agency relationship or representation you wish to have with the agent in the transaction. SELLER ' S A G E N C Y If you are a Seller, you should know that: -A Seller's Agent is employed through the Listing Agreement and as a Seller's Agent acts as the Agent for the Seller only. A Seller's Agent or a Sub-Agent of the Agent has the following affirmative obligations: TO THE SELLER: a) A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealing with the Seller. TO THE SELLER AND THE BUYER: a) Diligent exercise of reasonable skill and care in performance of the Agent's duties. b) A duty of honesty, fair dealing, and good faith. c) A duty to disclose all facts known to tw Agent which relate to dangerous or seriously detective conditions of the property that are not known to, or within the diligent attention and observation of, the parties. An agent is not obligated to reveal to either party any confidential information obtained from the other party -which does not involve the affirmative duties set forth above. If you are a prospective Buyer, you should know that: -Unless otherwise provided by a written buyer agency agreement, the Listing and Cooperating ("Selling") Brokers are Agents of the Seller and they do not represent the Buyer. -Their fiduciary duties of loyalty and faithfulness are owed to their client, the Seller. -Although neither Broker is your Agent, they are able to provide you with a variety of valuable market information and assistance in your decision snaking process. A REAL ESTATE BROKER REPRESENTING THE SELLER CAN DO THE FOLLOWING FOR A BUYER: a) Provide you with information about available properties and sources of financing. b) Show you available properties and describe their attributes and amenities. c) Assist you in submitting an offer to purchase. BOTH THE LISTING AND COOPERATING BROKER ARE OBLIGATED BY LAW TO TREAT YOU HONESTLY AND FAIRLY. THEY MUST: a) Present all offers to the Seller promptly. b) Respond honestly and accurately to questions concerning the property. c) Disclose all facts known to the Agent which relate to dangerous or seriously defective conditions of the property that are not known to, or within the diligent attention and observation of, the parties. d) Offer the property without regard to race, color, religion, sex, handicap, familial status, ancestry, disability, or national origin. You may, if you feel it necessary, establish an agency relationship with a real estate broker or obtain representation by an attorney, or both. [BUYER'S AGENC? If as a Buyer, you choose to have a real estate Broker represent you as your Agent, you must: -Enter into a written buyer's agency agreement that clearly establishes the obligations of both parties. -Specifv how your agent will be compensated. An Agent can, with the Buyer's consent, agree to act as agent for the Buyer only. In these situations, the Agent is not the Seller's Agent, even if by agreement the Agent may receive compensation for services rendered, either in full or in part from the Seller. An Agent acting only fm a Buyer has the following affirmative obligations: TO THE BUYER: a) A fiduciary duty of uimo<t care, integrity, honesty, and loyalty in dealings with the Buyer. TO THE BUYER AND THE SELLER: ,, na;•,..,, .. -;,. "r ..,.nnahln'tin and rarr in nerformanre of the Aeent's duties. q,qade Ilih ADDENDUM TO AGREEMENT OF SALE " ?- day of 19 by and between y- -.?t??(' herelnartar known as Sellerts) and hereinafter known as Buyer(s), both as regard the property situate at _ Pennsylvania. This Addendum shall be attached to and made a part of Agreement of S ale dated Jl.+,. • 19i-. by and between the parties herein. F ' "' IT IS AGREED AS FOLLOWS: ?•••^""' "" ' ,ti ?Y' ' ., L.-'"?" e f ! s d! isi . )? t r L-_ ? ?_:.•.• lam. /• `? -• ,_ Y??.;? 5C N , 0x Witness: u (Seiler) , Date: L. (Seller) Date: (Buyer) Date- (Buyer) Date: 1 1? ?aeec? eALTOR ADDENDUM TO AGREEMENT OF SALE. Icy I•r•` l1 Agreement Is made this L day of ?'' A?lr t'e'14 , 191L-, by and between hereinafter known as Seller{s) and / f (7 )4, H 74 Lam- / • r- ? n ? • ;+ hereinafter known as Buyer(s), both as regard the property situate at Pennsylvania. This Addendum shall be attached to and made a part of Agreement of Sale dated i , 19=%?by and between the parties herein.. IT IS AGREED AS FOLLOWS: y , 1'?ir.' ?`?P.??'1^?t ???t 1??C,+?-.aL. ?-?:s' ? ? \\.?a.!?i,-. ? -?`? ?T ,r,?s? 5 i D e}?/ _ ?n nr-.?J Al CL' , +hL! ?.._^s JL,^... .?s.f `"'N' '?` i^?C??7 ??.r? 7?n N`f' • I Oral/ - or 11\ ,z all i ( CA, f f ' ? ¢ c?iU r 1:-... -..: i,- i? ? x ,,.n,r? !r ?) gyn. .?.,, .?..t+ •--- r i . ? ?r" ..rnA a 1 r ( l?l? ?9n i.. ??, />`?'n S:7h r, d. 0 O Wit- ?" - < e - /- \ .f ,' 1, ?_ n%rf lik S t .C22 U 0111-1/1, C Witnes' .. ` w Se y /'? ,.? (seller) , C:k 1ST L??r ? Date: _ L (Seiler) Date: i-2,1--")f? (Buyer) Date: 4 (Buyer) I Date: 1 22- ?l .JACX / a...,a? ADDENDUM ?, TO AGREEMENT OF SALE greement Is made this t 77- day of ? / rcl IA r??J, 7 19 by and between - _---. 4•fi!f1-o.1 i s ^; ?' ? 4? 3.? /i l 1^ ?-F^ `4 F7>1 I 1 U't - erainafter known as Seller(s) and - r -' i ri 1`7- 1-?• y,^? erelnafter known as Buyer(s), both as regard the property situate Pennsylvania. his Addendum shall be attached to and made a part of Agreement of Sale dated.f ,'-h/ 192-4 by and between the patties aretn. - / - 7S AGREED AS FOLLOWS: F 1 : O l / IAZ - /`'.? fslkxll s?Ce ?-,, kr ?(?llt, IS G t ?!? s 41 n ? -?7. ?.5 0 )ILIJF!Z:, f t M? ?Witness: rte= '?` ? v I Date: ; - -'.. 96 (Seller) Date: A Li (Buyer) Date: ?-^ 27.- r (Buyer) Date: )-27 - ?j L PURCHASER'S FINANCIAL STATEMENT (CONFIDENTIAL) Social Securityjk Address (Home) = t 1'' itch Phone: Home n Office !l /? Dependents i L.-- S`/ (c l (Name air Age) Employed by T Address- Occupabonmtle S.., r C:, .,.', i -i Salary (Annual) No. Yrs. a r (Overtime) $ Phone PREVIOUS EMPLOYMENT (If present job is less than 2 yrs.) Employed by Address OccupationTtle Salary (Annual) No. Yrs. EXTRA EMPLOYMENT OF PURCHASER Employed by Occupation/Title Salary (Annual) No. Yrs. OTHER EXTRA INCOME (Annual) Retlrement/Reserve Pay $ Disability Income $ Investment Income $ Other Income $ ASSETS Balance on Deposit Bank accounts (Name) $ Checking $ Saving $ $ IRA/Pension $ Savings Bonds-Amount $ Stock/Bonds-Amount $ Life Ins.: $ Cash Value (if known)$ Household Fumishings-Value $ Automobiles: Yr. Value $ Yr. Value $ Property Owned-Value $ Equity $ Trucks: $ Trailers: $ Boats: $ Other Assets: $ IF HOME IS BEING PURCHASED U NDER VA or FHA financing, what is the source of money needed for down payment and/or settle- ment charges: (bank account. bonds, insurance cash value, gifts,etc.) Alimony/Child Support $ Rent Payment $ Co-Signer of Loan $ Other Liabilities $ Total Monthly Payments $ the person to whom this application is made, or any credit bureau or other investigative agency employed by such person, to Invest- ; herein fisted or statements or other data obtained from me or from any person, pertaining to my credit and financial responsibility. presented with the understanding that it may be used as a basis for the acceptance of a contract by the setter and for the placement reigned hereby authorizes the agent to disclose to the seller, cooperating brokers and any lender all or any portion of the information uncial information sheet JjQJhhe above information is true and correct to the best of my/our knowledge, and it is my/our understanding ,--#=mpl a in ormaticWmay result in forfeiture of deposit or other financial loss.' r, ?Co-Purchaser `Date-of Birth' Social Security # Address (Home) _ Phone: Home, Dependents _ (Name & Age) Office Co-Purchaser Employed by: t" r Address OccupatioNTitle Salary (Annual) $ No. Yrs. (Overtime) $ Phone LIABILITIES BALANCE M0. PAYMENT Installment debts/credit cards $ $ Property/Homes $ Student Loans $ (Yes ar NO) 1. Will you occupy premises? Z Are there any outstanding judgements against you? 3. Have. you been declared bankrupt within the past 7 years? 4. Have you had property foreclosed upon or given title or deed In lieu thereof In the last 7 years? 5. Are you a parry to a law suit? 6. Are you obligated to pay alimony, child support or separate maintenance? 7. Is any part of the down payment borrowed? 6. Are you a o Mker or endorser on a note or mortgage? 9. Are you a U.S. citizen? 10. Do you know of anything that will effect your ability to obtain a loan? PURCHASER'S SIGNATURE DATE STATEMENT OF ESTIMATED SELLER'S COSTS ate Prepared Seller: r. ype Loan: 'r' '' Property: ) ale Price: Mortgage Amount: P. he following ESTIMATE is given so that the Sellers will understand approximately what costs will be ,ducted from the Gross Sale Price at the time of their settlement: 1. Broker's Commission: Rt % of $_ ...... $ < 2. 1% Transfer Tax ............................................................... 3. Notary Fees ...................................................... ................ $ - 4. Deed Preparation .............................................. ................. $ 5. Radon Certification ........................................... ................. $ 6. Wood Infestation Inspection ............................. ................. $ _- 7. Private On-Lot Sewage System Inspection ........ ................. $ - 8. Water Analysis Report ..... :........... .................... ................. $ 9. Roof Certification ............................................. ................. $ 10. Home Warranty Program... ............................... ......... ?- ........ 11. Home Inspection Fee ........................................ ................. 12. I OK Program.. .................................................. ................. $ 13. Buyers Closing Costs ....................................... .................. $ 14. MortgageaDiscount or Placement Fee J $ C__/a of mortgage amount) ..................... ................ 15. Settlement or Disbursement Fee ....................... ................. $ 16. FHANA Fees (Total estimate of $200)* .......... .................. $ -- 17. ........... $ - TOTAL ESTIMATED SELLING EXPENSES ............................. $ 'FHA/VA regulations require the sell" to pay certain mortgage company charges Fees miry vary according to lender. Above estimate includes Inspection(s)/S50.00 each, 10od Certificstion/S10.00, Tu service Fen/$100.00, Notary Fecs/$10.00, Miscellaneous Fees/$30.00 Total deductions at settlement are estimated as follows: $ Estimated Selling Expenses $ Estimate Payoff First Mortgage $ Estimate Payoff Additional Mortgage/Liens $ TOTAL ESTIMATED DEDUCTIONS Based on the above estimates, approximate proceeds at settlement may be: $ h Gross Sale Price Less Total Estimated Deductions $ Estimated Proceeds at Settlement Fhe above figureg include payoff information provided, by Sellers, and may not include payoff of all liens, encumbrances, lroperty taxes or special assessments. All payoffs and/or release of existing mortgages and liens will be deducted from ,our proceeds at settlement. We hereby acknowledge receipt of a copy of this Statement of Estimated Seller's Costs, and understand and agree to he charges indicated herein. - ? ,- Nitness: ! ? r i r ` i / J I r (Seller) ' 1 ?. - r ; I A (Seller) (Seller) 3ev. 9/95 r f r "-. _ CERTIFICATE OF SERVICE AND NOW, this 23rd day of January, 1997, I, Marcus A. McKnight, III, do hereby certify that I have served a true and correct copy of the Complaint, by First Class United States Mail, postage prepaid in Carlisle, Pennsylvania, the date set forth below, to the following: Mahammad U. Farooq Talat Farooq 22 Sunfire Avenue Camp Hill, Pennsylvania 17011 A. Mcgght, III, Esquire v for Plaintiffs. Hollenbach and Morrow 60 West Pomfret Street Carlisle, Pennsylvania 17013 717-249-2353 Supreme Court I.D. No. 25674 Date: January 23, 1997 ?xl,? 1???' ? MUTUAL RELEASE THIS RELEASE OF CLAIMS, made as of this day of March, 1997, by and between MOHAMNIAD U. FAROOQ and TALAT FAROOQ called plaintiffs; and CHARLES HOLLENBACH and DIANA MORROW, hereinafter called Defendants. WITNESSETH; WHEREAS, the plaintiffs filed suit against the defendants in the Court of Common Pleas of Cumberland County, Pennsylvania, at 96-6529, and the defendants have cross filed against the plaintiffs; and WHEREAS, the parties now desire to resolve the outstanding claims and settle this case; NOW THEREFORE, the parties agree to be legally bound and resolve the case as follows: 1. The down payment held by Jack Gaughen, Realtor, in the amount of Three Thousand and no/100 ($3,000.00) Dollars will be paid as follows: a. To the plaintiffs - Farooq ............................. $1,100.00 b. To the defendants - HollenbachlMorrow...... $1,900.00 2. The plaintiffs do hereby, release, quit claim and satisfy any claim or judgment which they may have against the defendants. This release is specific to them and does not effect any other claim against any other party. 3. The defendants do hereby release, quit claim and waive any claims which they may have against the plaintiffs. The release does not apply to any other parties or claims they may have against third parties related to the subject of this litigation. AND NOW intending to be bound hereby the parties enter their hands and seals the date first set forth above. PLAINTIFFS: 't4 L ° `'--k IU ' (SEAL) MOHAMMAD U. FAROOQ (??v l rya L (SEAL) TALAT FAROOQ DEFENDANTS (?Lcal 6?? (SEAL) CHARLESHOLLENBACH (SEAL) DIANNA MORROW WITNESSETH 9 STATE OF PENNSYLVANIA SS: COUNTY OF PERSONALLY APPEARED BEFORE ME, this day of , 1997, MOHAMMAD U. FAROOQ and TALAT FAROOQ known to me (or satisfactorily proven) to be the persons named herein and who executed the foregoing Mutual Release and they acknowledged to me that they have read the foregoing Mutual Release and understands the contents thereof and that they voluntarily executed the same. Notary Public My term expires: STATE OF PENNSYLVANIA : SS: COUNTY OF CUMBERLAND n PERSONALLY APPEARED BEFORE ME, this day of ' A 1997, CHARLES HOLLENBACH and DIANNA MORROW, known to me (or satisfactorily proven) to be the persons named herein and who executed the foregoing Mutual Release and they acknowledged to me that they have read the foregoing Mutual Release and understands the contents thereof and that they voluntarily executed the same. otary Public My term expires: =E Boro MaCarli9My Comember Pennsyivania ssotaries ¢mwalr J GENERAL RELEASE AGREEMENT made this 17_th _ day of March .19 97, by and between arles_llollenbach & Diana Morro Ilcrs) hammad U. & Talat Faroo lvcrs) 1 JACK GAUGHEN REALTOR (Agent) WITNESSETH. WHEREAS, the aforementioned Seller(s) and Buycr(s) did enter into an Agreement for the sale of real :ate dated the 22nd day of pn;rarr 19 9fi _ , for the sale of the premises situated at 10 1701 ,ich Agreement is incorporated herein by reference; and _ WHEREAS, Sellers, Buyers, and Agent desire to declare said Agreement null and void, and mutually to lease one another from any and all obligations thereunder; and. NOW, THEREFORE, in consideration of the premises and the sum of One (51.00) Dollar in hand paid, ch to the other(s), receipt ofwhich is acknowledged, the parties agree that - Buyer(s) and Seller(s) hereby mutually release, quit-claim and forever discharge the other(s) from any and all obligations, complaints, liabilities, claims, and demands whatsoever by reason of the aforementioned Agreement of Sale, and further the 4 parties do jointly and severally release, remise, quit-claim and forever discharge the said Jack Gaughen Realtor, its officers, agents, representatives, co-brokers and sub-agents, from any and all obligations, complaints, claims, and demands whatso- ever. Agent(s) likewise and reciprocally release Buyer(s) and Seller(s). 2. Payment of deposit (cash and/or note) hereby directed to the account of- Buyer(s) s 1,100.00 . Seller(s) $ 1 900 00 subject only to any previously authorized deductions. IN,WITNESS WHEREOF, Sellers(s), Buyer(s) and Agent(s) have hereunto set their hands and seals the iy and year first above written. Seller Seller Buyer TGtJL0.x ]3uycr Agent GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 101 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevin ig bson&gibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. MARCUS McKNIGHT, ESQ AND No. 2003-256 Civil Term Jury Trial Demanded IRWIN MCKNIGHT & HUGHES Defendants PLAINTIFFS' ANSWER TO NEW MATTER L-4. The allegations herein refer to a writing which speaks for itself and therefore no further response is required by the Rules of Civil Procedure. 5. Denied. Suit was filed in District Justice Court and then an appeal was taken to the Court of Common Pleas. 6.-12. The allegation herein refers to a writing which speaks for itself and therefore no further response is required by the Rules of Civil Procedure. By way of further answer and defense, the lawsuit was filed at the direction of Defendants. By way of further answer and defense, the allegations in the Complaint were the work product of Defendant McKnight. 13. Denied as stated. Defendant McKnight recommended that Plaintiffs settle so that in McKnight's words, Plaintiffs could move forward in McKnight's recommended action against Star Enterprise and/or Texaco. Moreover, of the $1900.00 Plaintiffs received, they paid $800.00 to Defendant McKnight who insisted on this payment for representing Plaintiffs at the initial District Justice hearing referenced above. 14. The allegations herein refer to a writing which speaks for itself and therefore no further response is required by the Rules of Civil Procedure. By way of further answer and defense, Defendant Marcus advised Plaintiffs that the Release was drafted in such a fashion by McKnight so as to preserve McKnight's recommended action against Star Enterprise and/or Texaco. 15. This allegation fails to make grammatical sense. Without waiver of any objections Plaintiffs could file in that regard it appears that the allegation is a conclusion of law requiring no response. 16. The allegation herein is a conclusion of law requiring no response under the Rules of Civil Procedure. 17. Admitted. 18. Admitted. By way of further answer and defense Plaintiffs were advised by their bankruptcy counsel that since there was no action pending against Star/Texaco at the time of the filing that no such action was required to be disclosed. 19. Admitted. 20.-24. The allegations herein are conclusions of law requiring no response under the Rules of Civil Procedure. r Respectfully submitted, GIBSON & PERKINS P.C. B EV WILLIAM GIBSON VERIFICATION I, KEVIN WILLIAM GIBSON, ESQUIRE, attorney for Plaintiffs herein, verify that this matter and that the facts set forth in the foregoing Answer to New Matter are true and correct to the best of my knowledge, information and belief. Plaintiffs are not presently available to verify the Answer. Upon Plaintiffs' availability, this verification will be substituted. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. I hereby cerkify that on this 18"' day of April 2006, I served a true and correct copy of Plaintiffs' Answer to New Matter upon the following by Electronic Mail only: Jeffrey P. Albert, Esquire McKissock & Hoffman jalbert@mckhof corn 0940K IN ? LIAM GIBSON, ESQUIRE 3 ,. - f GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 101 Media, PA 19063 610.565.1708 610.565.4358 [faxj kevin ibg son(a)gibnerk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA MARCUS MCKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES Defendants PRAECIPE TO THE PROTHONOTARY: No. 2003-256 Civil Term Jury Trial Demanded Kindly substitute the attached Plaintiffs' Verification to the Answer to New Matter filed with the Court on April 19, 2006. Respect Ily submitted, GIBSO PER KIN C. BY: WIL IAM GIBBON VERIFICATION Charles and Diana Hollenbach, hereby verify that they are the Plaintiffs in this matter and that the facts set forth in the foregoing Answer to New Matter are true and correct to the best of their knowledge, information and belief. We understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. &.' a A //,- ? - Charles Hollenbach r Dianna Hollenbach CERTIFICATE OF SERVICE I hereby certify that on this 28d' day of April, 2006, I served a true and correct copy of a Praecipe to Substitute Plaintiffs' Verification to the Answer to New Matter upon the following by regular mail, postage prepaid: Jeffrey P. Albert, Esquire McKissock & Hoffman 1818 Market St reet, 13th Floor Philadelphia, PA 19135 GIBSON, ESQUIRE F? C?? f?7 ? ,-, . ? ? i?`?i. "? ?s ?° s? ..?? ? fv ?? 1 CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-256 MARCUS McKNIGHT, ESQUIRE and CIVIL ACTION - LAW IRWIN McKNIGHT & HUGHES, Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes, in the above-captioned. Respectfully submitted, By: McKissock & Hoffman, P.C. Edwin A.D. Schwarzsquire I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:;7?-.' 9 Zooms Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes 4 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. 200 East State Street Suite 105 Media, PA 19063 (Counsel for Plaintiffs) McKissock & Hoffman, P.C. Dated: 9 B y: Edwin A.D. Schw Es ire Identification No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes ?a O G.a tj ?t7 C5 GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibsona,gibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ. AND IRWIN MCKNIGHT & HUGHES COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded Defendants RULE 1042 CERTIFICATION OF MERIT I hereby certify that I have obtained an opinion from an appropriate and duly licensed attorney at law that there exists to a degree of reasonable probability that the skill or knowledge exhibited by the named defendants in this matter fell below the professional standard of care expected of similarly situated lawyers and that the deviation from said standard was the cause of the harm suffer by the Plaintiff as alleged in the foregoing Complaint. GIBSON & PERKINS P.C. BY: KEVIN WILLIAM GIBSON, ESQUIRE I.D. NO.: 31729 200 East State Street Suite 105 Media, PA 19063 610.565.1708 610.565.4358 [fax] kevingibson(a?gibperk.com Attorney For Plaintiffs CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH Plaintiff V. MARCUS McKNIGHT, ESQ AND IRWIN MCKNIGHT & HUGHES Defendants I COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 2003-256 Civil Term Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of March 2007, I served a true and correct of Plaintiffs Certificate of Merit upon the following by U.S Mail, first class, postage prepaid: Edwin AD Schwartz, Esquire Suite 302 2040 Linglestown Road Harrisburg PA IT 10 ON, ESQUIRE ? O ' tt r -?_w +_ - " gyp N , f? CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH, Plaintiffs V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-256 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Kindly enter the appearance of Eckert, Seamans, Cherin & Mellott, LLC by Edwin A.D. Schwartz, Esquire on behalf of Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes, in the above-captioned. Respectfully submitted, Eckert, Seamans, Cherin & Mellott, LLC By: Edwin A.D. Schwan uire I.D. No.: 75902 Eschwartz@eckertseamans.com Lauren M. Burnette, Esquire I.D. No.: 92412 213 Market Street; 8`h Floor Harrisburg, PA 17101 (717) 237-6046 Dated: October 1, 2007 Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes I CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. 200 East State Street Suite 105 Media, PA 19063 (Counsel for Plaintiffs) Eckert, Seamans, Cherin & Mellott, LLC By: ? Edwin A.D. Schw wire I.D. No.: 75902 Lauren M. Burnette, Esquire I.D. No.: 92412 213 Market Street: 8th Floor Harrisburg, PA 17101 (717) 237-6046 Dated: October 1, 2007 Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes -"tl -^: C11 S -t7L? r CHARLES HOLLENBACH AND DIANNA L. HOLLENBACH, Plaintiffs V. MARCUS McKNIGHT, ESQUIRE and IRWIN McKNIGHT & HUGHES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-256 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE Kindly withdraw the appearance of McKissock & Hoffman, P.C. by Edwin A.D. Schwartz, Esquire on behalf of Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes, in the above-captioned. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Schwar F, uire I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: October 1, 2007 Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes l CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Withdrawal of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. 200 East State Street Suite 10.5 Media, PA 19063 (Counsel for Plaintiffs) McKissock & Hoffman, P.C. By:? Edwin A.D. Schw squire Identification No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: October 1, 2007 Attorneys for Defendants, Marcus McKnight, Esquire and Irwin McKnight & Hughes n r`7 C?) 17- N '.