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HomeMy WebLinkAbout03-1172CYNTHIA L. HEINEY Plaintiff CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. L'~"2~-t'[ :7.7. Civil Term COMPULSORY ARBITRATION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 NOTICIA USTED HA SIDO DEMANDADA/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe romar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado pot el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 CYNTHIA L. HEINEY Plaintiff CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. Civil Term COMPULSORY ARBITRATION COMPLAINT NOW COMES CYNTHIA L. HEINEY, Plaintiff, through her attorneys, MILLER & ASSOCIATES, PC, and files this Complaint against the above named Defendants as follows: 1. Plaintiff CYNTHIA L. HEINEY is an adult individual residing at 2627 Logan Street, Borough of Camp Hill, Cumberland County, Pennsylvania. 2. Defendant CAMP HILL DELI, INC., is a Pennsylvania business corpora- tion with its principal located at 802 Cardigan Court, Dauphin County, Pennsylvania, and which, at applicable times, did conduct business at 2201 Market Street, Borough of Camp Hill, Cumberland County, Pennsylvania (hereinafter referred to as "Defendant Camp Hill Deli" or "Camp Hill Deli"). 3. Defendant, TIBOR ZALEZSAK, is an adult individual residing at 340 East Penn Drive, #118, Enola, Cumberland County, Pennsylvania, and which, at applicable times, did conduct business at 2201 Market Street, Borough of Camp Hill, Cumberland County, Pennsylvania (hereinafter referred to as "Defendant Zalezsak"). COUNT I Plaintiff v. Defendant Camp Hill Deli 4. Paragraphs 1 through 3 above are herein incorporated by reference and made a part hereof. 5. On or about 31 October 2001, Plaintiff, tldlbla "The Honeysuckle Cafb," entered into an Agreement of Sale with Defendant Camp Hill Deli whereby Plaintiff agreed to sell the assets of the business of The Honeysuckle Cafb for a total purchase price of Fifteen Thousand Dollars ($15,000.00). 6. On or about 31 October 2001, Defendant Camp Hill Deli made and delivered to Plaintiff a Promissory Note (hereinafter the"Note") to pay to Plaintiff the principal amount of Twelve Thousand Dollars ($12,000.00) with interest at the rate of Seven Percent (7%) per annum. A true and correct copy of the Promissory Note is attached hereto, made a part hereof, and marked as Exhibit "A." 7. The Note provided that payments under the Note were due and payable in sixty (60) monthly payments of both principal and interest in the amount Two Hundred Thirty-Seven and 61/100 Dollars ($237.61) on or before on the 1st day of each month beginning 1 December 2001. 8. Defendant Camp Hill Deli has made thirteen (13) installment payments under the Note totaling Three Thousand Eighty-Eight and 93/100 Dollars ($3,088.93) of principal and interest through 17 December 2002. A summary of the payment history of Defendant Camp Hill's payments under the Note is attached hereto, made a part hereof, and marked as Exhibit "B." 9. Defendant Camp Hill Deli became in default under the terms of the Note when it failed to make its payments due 1 January 2003, 1 February 2003 and 1 March 2003. -2- 10. Plaintiff payee duly presented the Note to Defendant Camp Hill Deli through her attorneys, MILLER & ASSOCIATES, PC., by letter, dated 21 February 2003, which letter advised Defendant Camp Hill Deli that it was considered to be in default under the terms of the Promissory Note. A copy of the 21 February 2003 letter is attached hereto, made a part hereof, and marked as Exhibit "C." 11. Defendant Camp Hill Deli has failed to cure its default. 12. Defendant Camp Hill Deli has failed and refused to pay the Note or any part thereof, although demand has been made. 13. Defendant Camp Hill Deli is breach of the terms of the Note. 14. There is currently remaining under the Note unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400.00). 15. Interest on the unpaid principal under the terms of the Note continues to accrue at the rate of Seven Percent (7%) per annum which calculates to a per diem rate of One and 80/100 Dollars ($1.80). 16. The Nute also provided that if Plaintiff did not receive any amount due within fifteen (15) calendar days of its due date, Defendant Camp Hill Deli would pay a late charge equal to two percent (2%) of the past amount due. 17. Of the fifteen (15) installments due to date from Defendant Camp Hill Deli, ten (10) of the fifteen (15) installments were not received by Plaintiff within fifteen (15) calendar days of their due dates. 18. Under the terms of the Note, there is due and payable to Plaintiff from Defendant Camp Hill Deli late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25). 19. The Plaintiff has incurred attorneys' fees and court costs in pursuit of this action. -3- WHEREFORE, Plaintiff demands judgment against the Defendant Camp Hill Deli in the amount of Nine Thousand Four Hundred Fifty-Two and 25/100 Dollars ($9,452.25) representing unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400) and late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25), with interest on the unpaid principal amount of Nine Thousand Four Hundred Dollars ($9,400) from 31 October 2001 at the rate of Seven Percent (7%) per annum, reasonable attorneys' fees and costs, and such other relief as this Court deems proper. COUNT II Plaintiff v. Defendant Zalezsak 20. Paragraphs 1 through 19 above are herein incorporated by reference and made a part hereof. 21. At all times mentioned herein, Defendant Zalezsak, was the principal and dominating stockholder and an officer and director of Defendant Camp Hill Deli, and dominated and controlled the activities and business decisions of Defendant Camp Hill Deli as if he was the sole proprietor thereof. 22. Defendant Camp Hill Deli was organized by Defendant Zalezsak as his alter ego for the purposes of conducting business. 23. Defendant Camp Hill Deli has never had, and does not have now, any genuine or separate corporate existence, but has been used for the sole purpose of permitting Defendant Zalezsak to transact a portion of his individual business under a corporate guise. 24. Sometime in the end of 2002, Defendant Camp Hill Deli and Defendant Zalezsak sold the assets of the Defendant Camp Hill Deli for approximately Fifty Thousand Dollars ($50,000.00) in cash. -4- 25. Defendant Zalezsak has rendered Defendant Camp Hill Deli insolvent. 26. Defendant Zalezsak, as the alter ego of the corporate Defendant Camp Hill Deli, is and has been, conducting, managing and controlling the affairs of the corporation of Defendant Camp Hill Deli since its incorporation, as though it were Defendant Zalezsak's own business, and has used Defendant Camp Hill Deli for the purpose of defrauding Plaintiff and others similarly situated. 27. As a result of Defendant Zalezsak treating Defendant Camp Hill Deli as a sole proprietorship and rendering the Defendant Camp Hill Deli insolvent, the corporate veil should be pierced and Defendant Zalezsak be held personally liable to Plaintiff for all monies claimed by her. WHEREFORE, Plaintiff demands judgment against the Defendant Zalezsak in the amount of Nine Thousand Four Hundred Fifty-Two and 25/100 Dollars ($9,452.25) representing unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400) and late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25), with interest on the unpaid principal amount of Nine Thousand Four Hundred Dollars ($9,400) from 31 October 2001 at the rate of Seven Percent (7%) per annum, reason- able attorneys' fees and costs, and such other relief as this Court deems proper. Dated: F. ~ ~ Willia~'EI Miller, Jr., Esquire Anthony E. Marrone, Esquire MILLER & ASSOCIATES, PC 1822 Market Street Camp Hill, PA 17011 (717) 737-9211 (717) 737-9215 ID No. 07220 and 48182 -5- VERIFICATION I, CYNTHIA L. HEINEY, do hereby verify that the statements made in the Foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. {}4904 relating to unsworn falsification to authorities. NOTE $ 12,000.00 October 31, 2001 FOR VALUE RECEIVED, the undersigned, CAMP HILL DELI, INC. of 802 Cardigan Court, Harrisburg, Pennsylvania 17112-("MAKER")~ promises to pay to the order of CYNTHIA L. HEINEY of 2627 Logan Street, Camp Hill, Pennsylvania 17011 ("HOLDER"), or her assigns, or at any other place that'the Holder of this Note may designate in writing, the sum of Twelve Thousand and XX/100 Dollars ($12,000.00) with interest at a rate of seven percent (7%) per annum. This-Note together with all interest-due on it is amortized over sixty (60) months with installments of Two Hundred Thirty- seven and 61/100 Dollars ($237.61) payable monthly. The first payment shall be due and payable December 1, 2001, and the remaining monthly payments shall be due on the same day of each month thereafter. If Holder has not received any amount due within fifteen (15) calendar days of its due date, Maker will pay a late charge to Holder equal to two percent (2%) of the past due amount. Maker of this Note shall have the right to prepay the principal of this~Note in whole or in part prior to its due date without fee, premium or penalty. Maker reserves the right to set off against amounts due hereunder, for payment of debt owed by Holder to Holder's Creditors with respect to the business known as The Honeysuckle Cafe. IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned sets its hand and seal the day and year first above written. ATTEST: By: CAMP HILL DELI, INC. By:~~~~/ TI~ALEZSAK ~/~ CYNTI~IA L. HEINEY Payments from Tibor Zalezsak Dec 2001 received 12/17/01 Feb 2002 " 02/18/02 Mar 2002 " 03/18/02 Apr 2002 " 04/30/02 Jun 2002 " 06/20/02 Jul 2002 " 07/27/02 Aug 2002 " 08/27/02 Dec 2002 " 12/17/02 Jan 2003 not received Feb 2003 not received Monthly payment 237.61 # of payments 60 Total $14,256.60 $ payments made' 3,088.93 Balance $11,167.67 William E. Miller, Jr. Anthony E. Marrone LAW OFFICES OF MILLER & ASSOCIATES, PC 1822 MARKET STREET * CAMP HILL, PA 17011 TEL: (717) 737-9210 · FAX: (717) 737~9215 Direct Dial Number: 737-9211 21 February 2003 Tibor zalezsak, Treasurer Camp Hill Deli, Inc. 802 Cardigan Court Harrisburg, PA 17110 FILE COPY Dear Mr. Zalezsak: We represent Cynthia L. Heiney and have spoken on several occasions with your attorney, Stephen C. Nudel, Esquire, regarding your obligation to Ms. Heiney under the Agreement of Sale, dated 31 October 2001, which you entered into with her for sale and purchase of assets of The Honeysuckle Cafe, business at 2201 Market Street, Camp Hill. We were advised recently that you have sold this same restaurant business to a third party for considerably more money than you paid Ms. Heiney to acquire the assets. Since you had received the sale proceeds in cash, i contacted Mr. Nuclei to inquire as to whether you would be willing to pay off Ms. Heiney at this time for a discounted present worth value of your obligation to her. Mr. Nudel, this week, advised me that you do not desire to pay off your obliga- tion to Ms. Heiney at this time, even at a discounted price. He stated that you would, however, continue the monthly installment payments as required under your Agreement a.,nd the accompanying Promissory Note.. Further, Mr. Nudel said that you told him you believed the amount remaining due Ms. Heiney under the NOte was considerably less than the so-called discount rate we had proposed and that you had paid all of your installment payments timely to this point. I told Mr. Nudel that you were incorrect on those two scores and he suggested that I write to you directly. Ms. Heiney's records indicate that you have made a total of thirteen (13) installment payments in the full amount of Three Thousand Eighty-Eight and 93/100 Dollars ($ 3,088.93) under your obligation. According to the amortization schedule that she was given, the current principal amount due as of this. date is Nine Thousand Four Hundred and 00/100 Dollars ($9,400.00). Further, under the Note, you are obligated to make monthly payments of Two Hundred Thirty-Seven and 61/100 Dollars ($237.61) on or before the first day of the month. Of the fifteen (15) installments due to date from you, ten (10) of the fifteen (15) installments have been late, with the average number of Tibor Zalezsak, Treasurer Page 2 21 February 2003 days late being approximately twenty-one (21) days. Enclosed is a summary of your payment history in honoring your obligation to Mrs. Heiney. Thus, you are in error on both of the above points. Further, to date, you have failed and refused to recognize the late payment penalty amounts due for the number of late payments you have made and those penalty amounts should be added to the principal balance due from you. Ms. Heiney's records indicate those late payment penalty amounts presently total Forty-Seven and 50/100 Dollars ($47.50). Hereafter, if you are late again in making your installment payments when due, as you have been in the past, we will declare a default under the Note and initiate proceedings to collect the amount from your corporation as well as from you personally. If you believe your records indicate that there is a different principal balance due, or, if you can prove that you did make timely installment payments by way of Post Office receipts, please feel free to contact me. Very truly yours, MILLER & ASSOCIATES, PC . By William E. Miller, Jr. WEM/mlj cc: Ms. Cynthia L. Heiney Stephen C. Nudel, Esquire SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-01172 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEINEY CYNTHIA L VS CAMP HILL DELI INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CAMP HILL DELI INC but was unable to locate Him deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE in his bailiwick. He therefore County, Pennsylvania, to On April 17th , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 36.50 .00 73.50 04/17/2003 IR. Thomas Kl~ne Sheriff of Cumberland County MILLER & ASSOCIATES Sworn and subscribed to before me this ~ ~ day of ~ 2 &'O.3 A.D. t / Pro~honotar~ ~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-01172 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEINEY CYNTHIA L VS CAMP HILL DELI INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: ZALEZSAK TIBOR but was unable to locate Him deputized the sheriff of DAUPHIN in his bailiwick. He therefore County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 17th , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 04/17/2003 Sheriff of Cumberland County MILLER & ASSOCIATES Sworn and subscribed to before me this ~ ~ day of ~ ~_~D~ A.D. Prothonotary in The Court of Common Pleas of Cumberland County, Pennsylvania Cynthia L. Heiney VS. Camp Hill Deli Inc et al 03-1172 civil SERVE: Tibor Zalezsak N0. N0w~ March 18, 2003 hereby deputize the Sheriff of , I, SHERIFF OF CUMBERLA_ND COUNTY, PA, do D~uphin Colltlty to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberl~d Co~, PA Affidavit Of Service Now, ., 20 ., at o'clock ~ M. served the within upon by handing to a and made known to copy of the original the contents thereof. S o answers, Sworn and subscribed before me this __ day of ., 20 Sheriff of COSTS SERVICE MILEAGE AFFIDAVIT County, PA ~n The Court of Common F~eas of Cumberland County, ?ennsylvaa~a Cynthia L. Heiney VS. C~np Hill Deli Inc et al 03-1172 civil SERVE: C~np Hill Deli Inc HOW, March-18:, 2003 hereby deputize the Sheriff of ., I, SHERIFF OF CUMBER i ,AND COUNTY, PA, do Dauphin Count3, to execute this Writ, this deputation being made at the request and risk °fthe Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, ., 20 .., at o'clock ~ M. served flue within upon by handing to a and made known to copy of the original the contents thereof. So answers, Sworn and subscribed before me this __ day of ,20 Sheriff of COSTS SERVICE MILEAGE AFFIDAVIT County, PA Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy MiChael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW:April 14, 2003 COMPLAINT ZALEZSAK TIBOR to DEF of the original : HEINEY CYNTHIA L vs : CAMP HILL DELI INC Sheriff's Return No. 0590-T - OTHER COUNTY NO. at -2003 03 1172 3:lSPMserved the within upon by personally handing 1 true attested copy(les) COMPLAINT and making known to him/her the contents thereof at SHERIFF'S OFFICE 112 MARKET STREET, 5TH FLOOR HARRISBURG, PA 17101-0000 Sworn and subscribed to bef --his i4TH day ~f~APRIL, 2003 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. Sheriff's Costs: $0.00 PD 03/20/2003 RCPT NO 176671 Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW:April 14, 2003 COMPLAINT CAMP HILL DELI INC to TIBOR ZALEZAK (OWNER) of the original : HEINEY CYNTHIA L vs : CAMP HILL DELI INC Sheriff's Return No. 0590-T - - -2003 OTHER COUNTY NO. 03 1172 at 3:18PM served the within upon by personally handing 1 true attested copy(les) COMPLAINT and making known to him/her the contents thereof at SHERIFF'S OFFICE 112 MARKET STREET, 5TH FLOOR HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 14TH day ~ ~PRIL, 2003 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. y 'Sh~r{f'~ ' Sheriff's Costs: $0.00 PD 03/20/2003 RCPT NO 176671 CYNTHIA L. HEINEY, : : Plaintiff : : V. : : CAMP HILL DELI, INC. and : TIBOR ZALEZSAK, individually, : : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1172 CIVIL TERM COMPULSORY ARBITRATION PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLATNT AND NOW, come Defendants, Camp Hill Deli, Inc. and Tibor Zalezsak, by and through their attorneys, Law Offices Stephen C. Nudel, PC, and respectfully file these Preliminary Objections to Plaintiff's Complaint as follows: 1. On or about March 17, 2003, Plaintiff filed a Complaint in the Court of Common Pleas of Cumberland County against Defendants alleging default under a Note provided by Defendant Camp Hill Deli, Inc. to Plaintiff. I. DEMURER TO COUNT Ii REQUEST FOR ATTORNEYS FEES AND COSTS 2. Paragraph 1 is hereby incorporated by reference as if set forth at length. 3. The prayer for relief in Count I of Plaintiff.s Complaint against Defendant, Camp Hill Deli, Inc., is for judgment together with reasonable attorneys fees and costs. 4. The Note executed by Defendant Camp Hill Deli, Inc. which is attached as Exhibit A to Plaintiff,s Complaint does not entitle Plaintiff to collection of attorneys fees or costs. 5. Plaintiff has plead no cause of action or other facts in Count I which would entitle Plaintiff to .attorneys fees or costs. 6. Plaintiff,s ability to assert a claim does not automatically entitle Plaintiff to attorneys fees or costs under Pennsylvania Law. 7. Plaintiff has failed~to plead a cause of action for which the relief requested can be granted regarding attorneys fees and costs. WHEREFORE, Defendant Camp Hill Deli, Inc. respectfully requests this Honorable Court to enter judgment on behalf of Defendants and against Plaintiff thereby dismissing Plaintiff,s request for attorneys fees and costs in Count I of Plaintiff,s Complaint. II. DE~g3RER TO COUNT II REQUEST FOR ATTORNEYS FEES AND COSTS 8. Paragraphs 1 through 7 are hereby incorporated by reference as if set forth at length. 9. The prayer for relief in Count II of Plaintiff,s Complaint against Defendant Tibor Zalezsak is for judgment with reasonable attorneys fees and costs. 10. The Note executed by Defendant Camp Hill Deli, Inc. which is attached as Exhibit A to Plaintiff,s Complaint does not entitle Plaintiff to collection of attorneys fees or costs. 11. Plaintiff has plead no cause of action or other facts in Count II which would entitle Plaintiff to attorneys fees or costs. 12. Plaintiff,s ability to assert a claim does not automatically entitle Plaintiff to attorneys fees or costs under Pennsylvania Law. 13. Plaintiff has failed to plead a cause of action for which the relief requested can be granted regarding attorneys fees and costs. WHEREFORE, Defendant Tibor Zalezsak respectfully requests this Honorable Court to enter judgment on behalf of Defendants and against Plaintiff thereby dismissing Plaintiff,s request for attorneys fees and costs in Count II of Plaintiff,s Complaint. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC e~nen C. N~ael, '~squire AttOrney ID #41703-- Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendants CYNTHIA L. HEINEY, : : Plaintiff : : V. : : CAMP HILL DELI, INC. and : TIBOR ZALEZSAK, individually, : : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-11172 CIVIL TERM COMPULSORY ARBITRATION CERTIFICATE OF SERVIC~ I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Anthony E. Marrone, Esquire Miller & Associates, PC 1822 Market Street Camp Hill, PA 17011 ar~ W. Allsho~se, ~squir~ Attprney ID #78014 l 219~Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendants CYNTHIA L. HEINEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually Defendants No. ~ - //?~ Civil Term COMPULSORY ARBITRATION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 NOTICIA USTED HA SlDO DEMANDADA/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso rs, dicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SlGUIENTE OFIClNA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENClA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 CYNTHIA L. HEINEY Plaintiff CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. Civil Term COMPULSORY ARBITRATION FIRST AMENDED COMPLAINT NOW COMES CYNTHIA L. HEINEY, Plaintiff, through her attorneys, MILLER & ASSOCIATES, PC, and files this First Amended Complaint against the above named Defendants as follows: 1. Plaintiff CYNTHIA L. HEINEY is an adult individual residing at 2627 Logan Street, Borough of Camp Hill, Cumberland County, Pennsylvania. 2. Defendant CAMP HILL DELI, INC., is a Pennsylvania business corpora- tion with its principal office located at 802 Cardigan Court, Harrisburg, Dauphin County, Pennsylvania, and which, at applicable times, did conduct business at 2201 Market Street, Borough of Camp Hill, Cumberland County, Pennsylvania (hereinafter referred to as "Defendant Camp Hill Deli" or "Camp Hill Deli"). 3. Defendant, TIBOR ZALEZSAK, is an adult: individual residing at 802 Cardigan Court, Harrisburg, Dauphin County, Pennsylvania, and which, at applicable times, did conduct business at 2201 Market Street, Borough of Camp Hill, Cumberland County, Pennsylvania (hereinafter referred to as "Defendant Zalezsak"). COUNT I Plaintiff v. Defendant Camp Hill Deli 4. Paragraphs 1 through 3 above are herein incorporated by reference and made a part hereof. 5. On or about 31 October 2001, Plaintiff, t/d/b/a "The Honeysuckle Cafb," entered into an Agreement of Sale with Defendant Camp Hill Deli whereby Plaintiff agreed to sell the assets of the business of The Honeysuckle Cafb for a total purchase price of Fifteen Thousand Dollars ($15,000.00). 6. On or about 31 October 2001, Defendant Camp Hill Deli made and delivered to Plaintiff a Promissory Note (hereinafter the"Note") to pay to Plaintiff the principal amount of Twelve Thousand Dollars ($12,000.00) with interest at the rate of Seven Percent (7%) per annum. A true and correct copy of the Promissory Note is attached hereto, made a part hereof, and marked as Exhibit "A." 7. The Note provided that payments under the Note were due and payable in sixty (60) monthly payments of both principal and interest in the amount Two Hundred Thirty-Seven and 61/100 Dollars ($237.61) on or before on the 1st day of each month beginning I December 2001. 8. Defendant Camp Hill Deli has made thirteen (13) installment payments under the Note totaling Three Thousand Eighty-Eight and 93/100 Dollars ($3,088.93) of principal and interest through 17 December 2002. A summary of the payment history of Defendant Camp Hill's payments under the Note is attached hereto, made a part hereof, and marked as Exhibit "B." 9. Defendant Camp Hill Deli became in default under the terms of the Note when it failed to make its payments due 1 January 2003, I February 2003 and 1 March 2003. -2- 10. Plaintiff payee duly presented the Note to Defendant Camp Hill Deli through her attorneys, MILLER & ASSOCIATES, PC., by letter, dated 21 February 2003, which letter advised Defendant Camp Hill Deli that it was considered to be in default under the terms of the Promissory Note. A copy of the 21 February 2003 letter is attached hereto, made a part hereof, and marked as Exhibit "C." 11. Defendant Camp Hill Deli has failed to cure its default. 12. Defendant Camp Hill Deli has failed and refused to pay the Note or any part thereof, although demand has been made. 13. Defendant Camp Hill Deli is in breach of the terms of the Note. 14. There is currently remaining under the Note unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400.00). 15. Interest on the unpaid principal under the terms of the Note continues to accrue at the rate of Seven Percent (7%) per annum which calculates to a per diem rate of One and 80/100 Dollars ($1.80). 16. The Note also provided that if Plaintiff did not receive any amount due within fifteen (15) calendar days of its due date, Defendant Camp Hill Deli would pay a late charge equal to two percent (2%) of the past amount due. 17. Of the fifteen (15) installments due to date from Defendant Camp Hill Deli, ten (10) of the fifteen (15) installments were not received by Plaintiff within fifteen (15) calendar days of their due dates. 18. Under the terms of the Note, there is due and payable to Plaintiff from Defendant Camp Hill Deli late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25). 19. The Plaintiff has incurred attorneys' fees and court costs in pursuit of this action. -3- WHEREFORE, Plaintiff demands judgment against the Defendant Camp Hill Deli in the amount of Nine Thousand Four Hundred Fifty-Two and 25/100 Dollars ($9,452.25), representing unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400) and late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25), with interest on the unpaid principal amount of Nine Thousand Four Hundred Dollars ($9,400) from 31 October 2001 at the rate of Seven Percent (7%) per annum, and such other relief as this Court deems proper.. COUNT II Plaintiff v. Defendant Zalezsak 20. Paragraphs 1 through 19 above are herein incorporated by reference and made a part hereof. 21. At all times mentioned herein, Defendant Zalezsak, was the principal and dominating stockholder and an officer and director of Defendant Camp Hill Deli, and dominated and controlled the activities and business decisions of Defendant Camp Hill Deli as if he was the sole proprietor thereof. 22. Defendant Camp Hill Deli was organized by Defendant Zalezsak as his alter ego for the purposes of conducting business. 23. Defendant Camp Hill Deli has never had, and does not have now, any genuine or separate corporate existence, but has been used for the sole purpose of permitting Defendant Zalezsak to transact a portion of his individual business under a corporate guise. 24. Sometime in the end of 2002, Defendant Camp Hill Deli and Defendant Zalezsak sold the assets of the Defendant Camp Hill Deli for approximately Fifty Thousand Dollars ($50,000.00) in cash. 25. Defendant Zalezsak has rendered Defendant Camp Hill Deli insolvent. -4- 26. Defendant Zalezsak, as the alter ego of the corporate Defendant Camp Hill Deli, is and has been, conducting, managing and controlling the affairs of the corporation of Defendant Camp Hill Deli since its incorporation, as though it were Defendant Zalezsak's own business, and has used Defendant Camp Hill Deli for the purpose of defrauding Plaintiff and others similarly situated. 27. As a result of Defendant Zalezsak treating Defendant Camp Hill Deli as a sole proprietorship and rendering the Defendant Camp Hill Deli insolvent, the corporate veil should be piercud and Defendant Zalezsak be held personally liable to Plaintiff for all monies claimed by her. WHEREFORE, Plaintiff demands judgment against the Defendant Zalezsak in the amount of Nine Thousand Four Hundred Fifty-Two and 25/100 Dollars ($9,452.25) representing unpaid principal in the amount of Nine Thousand Four Hundred Dollars ($9,400) and late charges in the amount of Fifty-Two and 25/100 Dollars ($52.25), with interest on the unpaid principal amount of Nine Thousand Four Hundred Dollars ($9,400) from 31 October 2001 at the rate of Seven Percent (7%) per annum, and such other relief as this Court deems proper. Respectfully submitted, Dated: William E. Miller, Jr., E~e MILLER & AS~ATES, PC 1822 Market-Street Camp Hill, PA 17011 (717) 737-9211 (717) 737-9215 ID No. 07220 -5- VERIFICATION I, CYNTHIA L. HEINEY, do hereby verify that the statements made in the Foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. $ 12,000.00' NOTE October 31, 2001 FOR VALUE RECEIVED, the undersigned, CAMP HILL DELI, INC. of 802 Cardigan Court, Harrisburg, Pennsylvania 17112- ("MAKER,,)~ promises to pay to the order of CYNTHIA L. HEINEY of 2627'Logan Street, Camp Hill, Pennsylvania 17011 .("HOLDER"), or her assigns, or at any other place that ~the Holder of this Note may designate in writing, the sum of Twelve Thousand and XX/100 Dollars ($12,000.00) With interest at a rate of seven percent (7%) per annum. This-Note together with all interest~ due on it is amortized over sixty (60) months with installments of Two Hundred Thirty- Seven and 61/100 Dollars ($237.61) payable monthly. The first payment shall be due and payable December 1, 2001, and the remaining monthly payments shall be due on the same'day of each month thereafter. If Holder has not received any amount due within fifteen (15) calendar days of its due date, Maker will pay a late charge to Holder equal to two percent (2%) of the past due amount. Maker of this Note shall have the right to prepay the principal-of this'Note in whole or in part p~ior to its due date without fee, premium or penalty. Maker reserves the right to set off against amounts due hereunder, for payment of debt owed by Holder to Holder's creditors with respect to the business known as The Honeysuckle Cafe. IN WITNESS W-HEREOF, intending to be legally bound hereby, the undersigned sets its hand and seal the day and year first above written. ' ATTEST: By: CAMP HILL DELI, INC. By: ~ · CYNTI~A L. i:I~EINEY Payments from Tibor Zalezsak Dec 2001 received 12/17/01 Feb 2002 " 02/18/02 Mar 2002 " 03/18/02 Apr 2002 " 04/30/02 Jun 2002 " 06/20/02 Jul 2002 " 07/27/02 Aug 2002 " 08/27/02 Dec 2002 " 12/17/02 Jan 2003 not received Feb 2003 not received Monthly payment 237.61 # of payments 60 To~al $14~256.60 $ payments made' 3~088.93 BalanCe $11,167.67 William E. Miller, Jr. Anthony E. Marrone LAW OFFICES OF MILLER & ASSOCIATES, PC 1822 MARKET STREET, CAMP HILL, PA 17011 TEL: (717) 737-9210 · FAX: (717) 737'-9215 Direct Dial Number: 737-9211 Tibor zalezsak, Treasurer Camp Hill Deli, Inc. 802 Cardigan Court Harrisburg, PA 17110 Dear Mr. Zalezsak: 21 February 2003 FILE COPY: We represent Cynthia L. Heiney and have spoken on several occasions with your attorney, Stephen C. Nudel, Esquire, regarding your obligation to Ms. Heiney under the Agreement of Sale, dated 31 October 2001, which you entered into with her for sale and purchase of assets of The Honeysuckle Cafe, business at 2201 Market Street, Camp Hill. We were advised recently that you have sold this same restaurant business to a third party for considerably more money than you paid Ms. Fleiney to acquire the assets. Since you had received the sale proceeds in cash, t contacted Mr. Nudel to inquire as to whether you would be willing to pay off Ms. Heiney at this time for a discounted present wOrth value of your obligation to her. Mr. Nudel, this week, advised me that you do not desire to pay off your obliga- tion to Ms. Heiney at this time, even at a discounted price. He stated that you would, however, continue the monthly installment paYments as required under your Agreement a, nd the accompanying Promissory Note.. Further, Mr. Nudel said that you told him you believed the amount remaining due Ms. Heiney under the Note was considerably less than the so-called discount rate we had proposed and that you had paid all of your installment payments timely to this point. I told Mr. Nudel that you were incorrect on those two scores and he suggested that I write to you directly. Ms. Heiney's records indicate that you have made a total of thirteen (13) installment payments in the full amount of Three Thousand Eighty-Eight and 93/100 Dollars ($ 3,088.93) under your obligation. According to the amortization schedule that she was given, the current principal amount due as of this. date is Nine Thousand Four Hundred and 00/100 Dollars ($9,400.00). Further, under the Note, you are obligated to make monthly payments of Two Hundred Thirty-Seven and 61/100 Dollars ($237.61) on or before the first day of the month. Of the fifteen (15) installments due to date from you, ten (10) of the fifteen (15) installments have been late, with the average number of Tibor Zalezsak, Treasurer Page 2 21 February 2003 days late being approximately twenty-one (21) dayS. Enclosed is a summary of your payment history in honoring your obligation to Mrs. Heiney. Thus, you are in error on both of the above points. Further, to date, you have failed and refused to recognize the late payment penalty amounts due for the number of late payments you have made and those penalty amounts should be added to the principal balance due from you. Ms'. Heiney's records indicate those late payment penalty amounts presently total Forty-Seven and 50/100 Dollars ($47.50). Hereafter, if you are late again in making your installment payments when due, as you have been in the past, we will declare a default under the Note and initiate proceedings to collect the amount from your corporation as well as from you personally. If you believe your records indicate that there is a different principal balance due, or, if you can prove that you did make timely installment payments by way of Post Office receipts, please feel free to contact me, Very truly yours, MILLER & ASSOCIATES, PC . By WEM/mlj cc: Ms. Cynthia L. Heiney Stephen C. Nudel, Esquire William E.. Miller, Jr. CYNTHIA L. HEINEY Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-11'72 Civil Term CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually Defendants COMPULSORY ARBITRATION CERTIFICATE OF SERVICE I, WILLIAM E. MILLER, JR., ESQUIRE, hereby certify that I have caused a true and correct copy of the Plaintiff's First Amended Complaint to be served by first class mail, postage prepaid, on the date set forth below, upon the following entity/individual, attorney for Defendants, Camp Hill Deli, Inc., and Tibor Zalezsak: Mark W. AIIshouse, Esquire Steven C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 Date: 29 May 2003 JWilliam E. Miller, Jr., Es~r~_ MILLER & ASSOCIA/,T, ES, PC 1822 Market Stre..~t/ Camp Hill, PA 17'011 (717) 737-9211 ID No. 07220 Attorneys for Plaintiff CYNTHIA L. HEINEY, : Plaintiff : C~vlP HILL DELI, INC. and : TIBOR ZALEZSAK, individually, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1172 CIVIL TERM COMPULSORY ARBITRATION DEF__~D._AiTTS' ANSWER TO p?.~?NTIFF'S FIRST ~NDED COMPLAINT AND NOW, come Defendants', Camp Hill Deli, Inc. and Tibor Zaleszak, by and through their attorneys, Law Offices Stephen C. Nudel, PC, who respectfully file this A~swer to Plaintiff's First Amended Complaint and aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. COUNT I 4. Denied. Paragraph 4 is a paragraph of incorporation to which no response is necessary. By way further response, Defendants' Answers in 1 through 3 are hereby incorporated by reference. 6. speaks 7. Admitted Denied as stated. for itself. Denied as stated. By way of further response, the Note By way of further response, the Note speaks for itself. 8. Admitted. 9. Denied. The averments contain conclusions of law to which no responsive pleading is required. 10. Denied. The averments contain conclusions of law to which no responsive pleading is required. By way of further response the letter speaks for itself. 11. Denied. The averments contain conclusions of law to which no responsive pleading is required. By way of further response Defendant denies that it owes the amount of money requested by Plaintiff. 12. Denied. To the contrary, Defendant has offered to pay part of the Note which offer has been refused by Plaintiff. 13. Denied. The averments contain conclusions of law to which no responsive pleading is required. 14. Admitted. 15. Denied. By way of further response, the terms of the Note speak for themselves. 16. Denied. By way of further response, the terms of the Note speak for themselves. 17. Admitted. 18. Denied. By way of further response, the terms of the Note speak for themselves. 19. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph. To the extent relevant, proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests this Honorable Court to enter a Judgment on behalf of Defendant and against Plaintiff thereby dismissing Count I of Plaintiff's Complaint. COUIqT II 20. Denied. Paragraph 20 is a paragraph of incorporation to which no response is necessary. Defendants' Answers in 1 through 19 reference. By way further response, are hereby incorporated by 21. Admitted in part. Denied in part. It is admitted that Tibor Zaleszak is the majority stockholder of Camp Hill Deli, Inc. It is denied that Zaleszak is the President of Camp Hill Deli, Inc. By way of further response, Zaleszak is the Treasurer of Camp Hill Deli, Inc. 22. Denied. The averments contain conclusions of law to which no responsive pleading is required. 23. Denied. To the contrary, Camp Hill Deli maintained a separate corporate existence maintaining separate checking accounts, financial records, ledgers and minutes. 24. Denied. To the contrary, the business was sold for only $40,000. By way of further response the money received from the sale of the business was used to payoff outstanding debts of Camp Hill Deli, Inc. 25. Denied. The averments contain conclusions of law to which no responsive pleading is required. 26. Denied. The averments contain conclusions of law to which no responsive pleading is required. 27. Denied. The averments contain conclusions of law to which no responsive pleading is required. WHEREFORE, Defendant respectfully requests this Honorable Court to enter a Judg~nent on behalf of Defendant and against Plaintiff thereby dismissing Count II of Plaintiff's Complaint. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: ~/~/0~ Stephen C. Nudel,~squire A~orney ID #4170~ Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendants VERIFICATION I, Tibor Zalezsak, President of Camp Hill Deli, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. CoS.A. Section 4904, relating to unsworn falsification to authorities. Date: ~ Z~, 7_oo~ CAMP HILL DELI, INC. Name :~/~bor Zalezsak Tit~'~ ~'easurer VERIFICATION I, Tibor Zalezsak, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief under penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. CYNTHIA L. HEINEY, Plaintiff CAMP HILL DELI, INC. and TIBOR ZALEZSAK, individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1172 CIVIL TERM COMPULSORY ARBITP~ATION CERTIFICATE OF SERVIC~ I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: William Miller, Esquire Miller & Associates, PC 1822 Market Street Camp Hill, PA 17011 W. Allshous~, Esquire rney ID #780~4 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendants