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HomeMy WebLinkAbout01-0509 FX ..~ .' ~ " J.d. . ,".- 1"-\ _ -, ._';:'..,", - ~",--'-, , . Thomas 1. Weber. Esquire - LD. #58853 David M. Steckel. Esquire - LD. #82340 Attorneys for Defendant Goldberg. Katzman & Shipman, P .C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 DAVID S. THOMAS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, RONALD J. HUNZIKER, 8 :s:: ffI (,.J :z:en _..J,j 6;5:.::- N -< ~-:-- -.J r--::r-'i $ :: -0 ;;clj ::&~:- );:0 c:: &:- :z: " ::< g DEFENDANT RONALD J. HUNZIKER'S PRE-TRIAL MEMORANDUM v. No. 01-509 CIVIL TERM CIVIL ACTION - LAW <::> ", ~ o ",- 9, -~-::i T:'2) r- :;:ff~: :-1~~r: -:'"'J .:n ":'~;.'~ QrA >! en --< Defendant. AND NOW, this 27th day of November, 2002, comes the Defendant, Ronald 1. Hunziker, by and through his counsel, Goldberg, Katzman & Shipman, P. c., and files this Pre-Trial Memorandum, pursuant to Local Rule 212-4. STATEMENT OF BASIC FACTS AS TO LIABILITY This action arises out of the formation and ultimate dissolving of a partnership in which Plaintiff and Defendant were the sole partners. The partnership was formed in 1995 with both parties making an equal capital contribution. Shortly after the formation of the partnership, Plaintiff ceased an active role due to numerous health concerns. From approximately 1997 on, full responsibility for operation ofthe partnership's business fell on the Defendant. L__" -",.--' -- '--I ~,,""-- _""" ~; ,,-' ,_-'.>,.,:',-<c,;", 'ii",0.__';''':;L{'-.; , Despite the best efforts of the Defendant, the business never reached the profit level anticipated by the parties. In the Spring of 2000, Plaintiff forced the closing of the business by unilaterally removing the equipment essential to the operation of the business. At the time Plaintiff removed the equipment from the business, he left Defendant with approximately 1 00 pairs of stock filler eyeglass frames which have no after-market value. Plaintiff's assertions as to value of the partnership assets are grossly overstated. It is acknowledged that a separate bank account was opened and maintained by the Defendant while he solely operated the business. Plaintiff was aware of this account at the time of its opening. Essentially, the business operated for a short of period of time and was not profitable. Plaintiff caused the closing of the business and is pursuing this claim trying to recover his lost expectations. STATEMENT OF BASIC FACTS AS TO DAMAGES Plaintiff's claims of damages are either speculative or unsubstantiated. It is asserted that Plaintiffwill claim that an element of damages include receiving invoices from venders of the business. Plaintiff has not established whether, in fact, this has occurred. However, it is believed that even if he did receive such invoices he did not individually tender payment. Further, Plaintiff's claims of the value of assets removed from the business are not valid or supported by credible evidence. Finally, Plaintiff has failed to acknowledge his own removal of certain business assets or account for their proceeds. 2 'lO' 'I. _ ,~, ;' -.' ~' .......'."c,., .- ,-,"._,_ - " '""__"'~_"'O=,_ ..__^~ "__'~'_ , STATEMENT OF PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. WHETHER DEFENDANT, DUE TO HIS ACTIVITIES OF SOLELY OPERATING THE BUSINES S DURING PLAINTIFF' S EXTENDED ABSENCE , WAS ENTITLED TO ADDITIONAL COMPENSATION. Suggested Answer: YES. B. WHETHER THE PLAINTIFF IS CAPABLE OF LEGALLY PROVING AN ENTITLEMENT TO ANY DAMAGES. Suggested Answer: NO, LEGAL ISSUES The Defendant does not anticipate any substantial legal issues at this time. However, the Plaintiff has not established how he intends to prove his claims for damages. As a result, it is anticipated some evidentiary issues may develop at trial. WITNESSES A. Ronald 1. Hunziker; B. David S. Thomas, as on cross; C. Michelle Thomas, as on cross. Michelle Thomas is the wife of Plaintiff and was frequently present at the business even while her husband was not involved due to his illness. D. Defendant reserves the right to seasonably update this list prior to trial. 3 - '"" ..,-" 1- .r.' ll. . ~~_" -, -' ,,--, u-"-,--- ""-.0. ", LIST OF EXHffiITS A. Partnership Agreement dated September 20, 1995. B. Schedule books from the operation of the business. C. Defendant reserves the right to seasonably update this list prior to trial. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Defendant has offered to pay $37,500 to resolve this dispute. Plaintiffhas rejected this offer, claiming it does not adequately reimburse him for his alleged losses, but has not provided any evidence that, in fact, any losses exceed this amount. Respectfully submitted, By: ~G.! TZ~~:;i!:MAN'P.C. ~,t: lvveX Th robs J. eber, ~qUire AttorAey I.D. #588 3 , David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: November 27, 2002 88136,2 , L , >- ""'~, ~, ' i 'c""" '~-.,-.- -'" 0_",_ ( CERTIFICATE OF SERVICE I hereby certifY that I served a copy of the foregoing document upon the person(s) indicated below by mailing a copy of the same via United States mail, postage prepaid, addressed as follows: Joseph L. Hitchings, Esquire 203 Wets CaTacas Avenue, Suite 201 Hershey, PA 17033 Date: November 27, 2002 ~ "0" ~_, _ "-<,~=,~ ~_"'_,_,_. ~-~".,_., ".~~_.,"" __=_.=.,~_.,,~ '~'"_"~_, I~"""'__' _ _ M~. ~"~< "-,,,,'-. '=-"0' Thomas J. Weber, Esquire. J.D. #58853 David M. Steckel Esquire. I.D. #82340 Attorneys for Defeudant Goldberg, Katzman & Shipman. P.C. 320 Market Street P. O. Box 1268 Harrisburg, P A 17108,1268 (717) 234-4161 DAVID S. THOMAS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. No. 01-509 CIVIL TERM RONALD J. HUNZIKER, CIVIL ACTION - LAW Defendant. DEFENDANT RONALD J. HUNZIKER'S PRE-TRIAL MEMORANDUM AND NOW, this 27'" day of November, 2002, comes the Defendant, Ronald J. Hunziker, by and through his counsel, Goldberg, Katzman & Shipman, P. C., and files this Pre-Trial Memorandum, pursuant to Local Rule 212-4. STATEMENT OF BASIC FACTS AS TO LIABILITY This action arises out of the formation and ultimate dissolving of a partnership in which Plaintiff and Defendant were the sole partners. The partnership was formed in 1995 with both parties making an equal capital contribution. Shortly after the formation of the partnership, Plaintiff ceased an active role due to numerous health concerns. From approximately 1997 on, full responsibility for operation of the partnership's business fell on the Defendant. -.- ~ -"" ~- "~- '" ~, - __ _. ~ n. __~'"~"""_, ~~_ >- ~- or. "-<-'-?, oj Despite the best efforts of the Defendant, the business never reached the profit level anticipated by the parties. In the Spring of 2000, Plaintiff forced the closing of the business by unilaterally removing the equipment essential to the operation of the business. At the time Plaintiff removed the equipment from the business, he left Defendant with approximately 100 pairs of stock filler eyeglass frames which have no after-market value. Plaintiff's assertions as to value of the partnership assets are grossly overstated. It is acknowledged that a separate bank account was opened and maintained by the Defendant while he solely operated the business. Plaintiff was aware of this account at the time of its opening. Essentially, the business operated for a short of period of time and was not profitable. Plaintiff caused the closing of the business and is pursuing this claim trying to recover his lost expectations. STATEMENT OF BASIC FACTS AS TO DAMAGES Plaintiff's claims of damages are either speculative or unsubstantiated. It is asserted that Plaintiffwi11 claim that an element of damages include receiving invoices from venders of the business. Plaintiff has not established whether, in fact, this has occurred. However, it is believed that even if he did receive such invoices he did not individually tender payment. Further, Plaintiff's claims of the value of assets removed from the business are not valid or supported by credible evidence. Finally, Plaintiff has failed to acknowledge his own removal of certain business assets or account for their proceeds. 2 ,--~,~ ~- ~'.~~~,-, .~~ -" ,,- -~ ,-~~'.- . -""~~'~-~"-''''-=----''~~''~~ ..,-- '/.'~'" ,,__ '.-.1, . STATEMENT OF PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. WHETHER DEFENDANT, DUE TO HIS ACTIVITIES OF SOLELY OPERATINGTHEBUSINESS DURINGPLAINTIFF' S EXTENDED ABSENCE, WAS ENTITLED TO ADDITIONAL COMPENSATION. Suggested Answer: YES. B. WHETHER THE PLAINTIFF IS CAPABLE OF LEGALLY PROVING AN ENTITLEMENT TO ANY DAMAGES. Suggested Answer: NO. LEGAL ISSUES The Defendant does not anticipate any substantial legal issues at this time. However, the Plaintiff has not established how he intends to prove his claims for damages. As a result, it is anticipated some evidentiary issues may develop at trial. WITNESSES A. Ronald J. Hunziker; B. David S. Thomas, as on cross; C. Michelle Thomas, as on cross. Michelle Thomas is the wife of Plaintiff and was frequently present at the business even while her husband was not involved due to his illness. D, Defendant reserves the right to seasonably update this list prior to trial. 3 "0'..""' I ;'" ',~_ , ,,'" , ,. , .~" " ~. ,"-~e' ,- ., ",','" ',-<f-<<~",.---'""_''-{-'..'-'" ...,;,'r~. __ " .~.., ""'_ ". ":,,,'= , '" ~~--.- ,",',""'c",.."",,h,,","^". "',,-'" ,;",-',,,"<-h'~ "^~ '-i""-"" "';;,""'''''''''-'<,~'_M'''''"' h "".,. 'T ''"..''';;, LIST OF EXHIBITS A. Partnership Agreement dated September 20, 1995. B. Schedule books from the operation of the business. C. Defendant reserves the right to seasonably update this list prior to trial. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Defendant has offered to pay $37,500 to resolve this dispute. Plaintiffhas rejected this offer, claiming it does not adequately reimburse him for his alleged losses, but has not provided any evidence that, in fact, any losses exceed this amount. Respectfully submitted, UjJ:MAN'P.C Th s J. eber,! quire Atto ey I.D. #5 8 3 David M. Steckel, Esquire Attorney I.D. #82340 320 Market Street, Strawberry Square P. O. Box 1268 Harrisburg,PA 17108-1268 (717) 234-4161 Attorneys for Defendant By: Date; November 27,2002 88136.2 , ., " ,~. .-~'- .--, ~ , CERTIFICATE OF SERVICE I hereby certifY that I served a copy of the foregoing document upon the person(s) indicated below by mailing a copy of the same via United States mail, postage prepaid, addressed as follows: JosephL. Hitchings, Esquire 203 Wets Caracas Avenue, Suite 201 Hershey, PA 17033 GO IDPMAN, P.C Date: November 27,2002 ~ _. ~ I L L - _', _;.~~_i , - ~.lMiC'" .. " NOV 19 2002~ Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA NO. 01-509 CIVIL TERM CIVIL ACTION-LAW DAVID S. THOMAS, vs. RONALD J. HUNZIKER, Defendant PLAINTIFF'S PRE-TRIAL MEMORANDUM AND NOW, this 15th day of November, 2002, comes the Plaintiff, David S. Thomas, by and through his undersigned attorney, Joseph L. Hitchings, Esquire, and files this Pre- Trial Memorandum pursuant to Local Rule 212-4. STATEMENT OF BASIC FACTS AS TO LIABILITY This action arises out of a business arrangement entered into by the Plaintiff, David S. Thomas, and the Defendant, Ronald J. Hunziker. On September 30, 1995 the parties entered into a Partnership Agreement to operate a business under the name of Central Penn Eye Care to provide optical services. The business was located at 5244 Simpson Ferry Road in Cumberland County, Pennsylvania. Pursuant to the terms of the Partnership Agreement the Plaintiff and Defendant were each fifty percent (50%) owners. On or about October 1, 1998 the Plaintiff became ill and was unable to see to the day to day operations of the business as he had done since the business started in October of 1995. The Complaint filed in this matter alleges that from the time that the Plaintiff was recovering, the Defendant was operating the business and removed or retained approximately $30,000.00 worth of partnership assets including eyeglass frames and ", -~ > ~, __"' I ~". -""."'-. --'-" ~ ... merchandise. It is also alleged that the Defendant received payments and funds from customers which were not deposited into the partnership bank account nor shared with the Plaintiff. It is further alleged that the Defendant opened up a separate bank account and placed funds belonging to the partnership in the account for his own use. The Complaint also includes counts for Breach of Fiduciary Duties under the Pennsylvania Uniform Partnership Act and Civil Conversion with the allegation that the Defendant deprived Plaintiff of his use and possession of the assets and profits of the corporation. The Plaintiff seeks in excess of$25, 0000.00. STATEMENT OF BASIC FACTS AS TO DAMAGES As a result of the Defendant's brellch of the Partnership Agreement, and the breach of his fiduciary duties, Plaintiff did not receive partnership assets and profits which he otherwise would have. In addition to the assets and profits which the Defendant retained and did not account for to the Plaintiff, Defendant also inappropriately ran up numerous bills on behalf of the business for which he failed and refused to pay and for which the Plaintiff was ultimately financially responsible. In addition to the other damages sought, Plaintiff is seeking reimbursement for his out of pocket costs as well. STATEMENT OF PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. Whether the Defendant breached the Partnership Agreement and his Fiduciary Duties to the Plaintiff by retaining merchandise and profits of the business, and by running up debt on the business which Plaintiff paid? SUGGESTED ANSWER: YES ).-. .~ ~ oj ~*",,,; . B. Whether as a result of the Defendant's breach of the Partnership Agreement and his fiduciary duties to the Plaintiff, the Defendant is liable for damages incurred by the Plaintiff? SUGGESTED ANSWER: YES LEGAL ISSUES The Plaintiff does not anticipate any substantial legal issues involving evidentiary matters that will need to be ruled upon by the Court. However, it should be noted, that throughout this case, the Defendant has been acting pro se. It is anticipated that at the trial of this case, should Defendant continue to represent himself, that the court will hold him to the same standard of conduct as officers of the court. WITNESSES A. David S. Thomas; B. Michelle Thomas; C. Ronald J. Hunziker, as on cross; D. Any witnesses identified by Defendant in his Pre-Trial Memorandum. LIST OF EXHIBITS A. Partnership Agreement dated September 20, 1995 B. Invoices and documentation showing costs incurred by Defendant, paid for by Plaintiff; C. Documentation of inventory at the time Plaintiff became ill; - _, I "' ~..c r'" '. D. Documentation including bank statements showing that Plaintiff opened up a separate account and deposited business funds into that account for his own use; E. Any Exhibits identified by the Defendant in his Pre-Trial Memorandum. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS At the time the Complaint was initially filed, Defendant made a settlement offer ofapproximately $37,500.00. Plaintiff made a counter-offer of approximately $80,000.00. Since Plaintiffs counter-offer, there have been no other discussions concerning settlement. Plaintiff remains ready, willing, and able to discuss settlement. However, any settlement figure must adequately reimburse Plaintiff for the merchandise and the lost profits ofthe business, as well as the business debts which the Plaintiff paid out-of-pocket. Respectfully submitted, THE LAW OFFICES OF JOSEPH L. mTCHINGS Date: 11- 1 S- O~ By: - =" ~-,J ~ Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA NO. 01-509 CIVIL TERM DAVID S. THOMAS, vs. RONALD J. HUNZIKER, CIVIL ACTION-LAW Defendant CERTIFICATE OF SERVICE I, Joseph 1. Hitchings of The Law Office of Joseph 1. Hitchings, Attorney for the Plaintiff, David S. Thomas, do hereby certify that I served a true and correct copy of the attached Plaintiffs Pre-Trial Memorandum, by United States Mail, First Class, postage prepaid upon the parities listed below: Ronald J. Hunziker 221 North 62nd Street Harrisburg, Pennsylvania 17111 Respectfully Submitted, THE LAW OFFICE OF JOSEPH 1. HITCHINGS oseph 1. Hitching, squire Attorney for Defendant~-_____ Supreme Court ID# 65557 203 West Caracas Avenue Suite 201 Hershey, Pennsylvania 17033 --~ ~,' ~ I '-,~; ,;;ti."":;I'~ti'*'O -4, ; NOV 1 9 2002~ LAW OFFICE OF JOSEPH L. HITCHINGS 203 WEST CARACAS AVENUE SUITE 201 HERSHEY, PENNSYLVANIA 17033 717,534.2600 FAX' 717.534. 1344 November 15, 2002 Prothonotary Office Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 RE: David S. Thomas v. Ronald J. Hunziker No. 01-509 Civil Term Dear SirIMadam: Enclosed for filing, please find an original and one copy of Plaintiff' s Pre-trial Memorandum in the above referenced matter. The case is scheduled for a Pre-Trial Conference before JUdge Guido on November 20, 2002. Would you please forward this Memorandum to Judge Guido and provide a time stamped copy to the undersigned in the enclosed pre-addressed envelope. Thank you for your attention to this matter. Very truly yours, cc: David S. Thomas Ronald J. Hunziker Honorable Edward Guido JLH/ab ~ - -""J \. ~ .. DAVID S. THOMAS, Plaintiff :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA v. ;NO.: 6/-609 C'ull RONALD J. HUNZIKER, Defendant :CIVIL ACTION - LAW :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 wi thin 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 obj ections 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 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 240-6200 SAlOIS, SHUFF, FLOWER & LINDSAY Dated: 1- 2J '0</ By '). seph L. Hitchings, ire Supreme Court I.D. # 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff __, , .L ' " -~ -*'" .'..,[ -- :",~ _' - SAIDIS SHUffi.~WER &UNIISAY ..rrn_'\'SoAl'.lAW 26 W. High Street Carlisle, PA , ,.;-:, - ~>d' :",-1';" = -.", ",W< ~-.'''' ""'.oA-"/':';~-"';";;''-_~'>;;-'c:;': /_,;,~ "-_.__". '~-'}-YA;;; '..:_'" .; ,- 1, ~ ~. I' , I,:, 1" I I I' I'"~ , . . DAVID S. THOMAS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 6/-.561 ~ 1cP--W- v. RONALD J. HUNZIKER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT NOW, comes the Plaintiff, David S. Thomas, by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and avers in support of this Complaint against Defendant, Ronald J. Hunziker as follows: 1. Plaintiff, David S. Thomas is an adult individual, residing at 730 Meadow Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant, Ronald J. Hunziker, is an adult individual with a last known address of 221 North 62nd Street, Harrisburg, Dauphin County, Pennsylvania 17111. 3. On September 30, 1995, the Plaintiff and Defendant entered into a Partnership Agreement to operate a business under the name of Central Penn Eye Care to perform optical services with a principal place of business located 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. A true and correct copy of the Partnership Agreement is attached hereto, incorporated herein, by reference marked as Exhibit "A". i Ii II SAIDIS SHUffi.!!OWER &Ul'IuSAY ATmIlNrnlo.U'.I.AW UW. HIgh Street Carlisle, PA -, -," ~,; --~~;- .', 4. Pursuant to the terms of the Partnership Agreement, the Plaintiff and Defendant were each fifty (50%) percent owners of the partnership. 5. On or about October 1, 1995, the parties operated the business known as Central Penn Eye Care and distributed profits and losses in accordance with the Partnership Agreement. 6. On or about October 1, 1998, Plaintiff became ill and was unable to see to the day-to-day operations of the business, as he had done since on or about October 1, 1995. 7. Defendant advised Plaintiff to take his time and recover and Defendant took over the running of the business. COUNT ONE BREACH OF CONTRACT Paragraphs 1 through 7 hereof are incorporated by reference as if the same were more fully set forth at length herein. 8. During the time the Plaintiff was recovering and Defendant was operating the business, the Defendant removed and retained approximately thirty thousand ($30,000.00) dollars , worth of partnership assets, including eyeglass frames and merchandise. 9. During this time period, Defendant also received payments and funds from customers which were not deposited into the partnership bank account nor shared with Plaintiff. 2 II SAIDIS S~~WER & LIl'lUSAY A11OIINIMIo.<<.lAW 26W.B1ghSUoet CarIlsIe, PA - '0.<-. -' ,"",-".,,-'-~ 'o'~ . . 10. During this time period, Defendant opened up a separate bank account at which time he placed funds belonging to the partnership in the account for his own use. 11. All the above actions were conducted by the Defendant without the prior notification, authorization or consent of the Plaintiff. 12. By Defendant's actions, he has breached the Partnership Agreement including but not limited to: a} Paragraph 4 dealing with Profits and Loss, b) Paragraph 5 dealing with Salaries and Drawings, and c) Paragraph 7 dealing with Management, Duties and Restrictions. WHEREFORE , Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and costs and such other relief as the Court deems appropriate. COUNT TWO BREACH OF FIDUCIARY DUTIES Paragraphs 1 through 12 hereof are incorporated by reference as if the same were more fully set forth at length herein. 3 , ',I , 'I II . _,- ;<",', '. ~;"" - c- .,.-" ", . ,~_ - --i~""-"'/'.d\;;.-- >i. "&<,:~,.i';-;'<"-.,> ,'-:':'~-'''.- '.:',;,'-,>, -; ,'., ";"~:"~'"<";-_':./i-: < .' 13. As a partner in the partnership doing business as Central Penn Eye Care, Defendant has a fiduciary duty to the Plaintiff and to the partnership. 14. Included in that fiduciary duty is the duty of Defendant to hold as Trustee any profits derived by him without the consent of the other partners from any transaction connected to the conduct of the partnership. See Pennsylvania Uniform Partnership Act, 15 Pa.C.S.A.s8334. 15. Defendant has retained partnership assets and kept partnership profits for himself, without accounting for or sharing the same with the Plaintiff. 16. As a result of the actions of the Defendant, he is in breach of his fiduciary duties owing to the Plaintiff and the partnership. WHEREFORE, Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate. COUNT THREE CIVIL CONVERSION Paragraphs 1 through 16 hereof are incorporated by reference as if the same w~re more fully set forth at length herein. 4 "-""""'h_c' 0" SAIDlS SHUffi.BPWER &Lll'lUSAY ATIOHNEYlloATolAW 26W. High Street Carl1sle,PA , ~ _ '.., ,L_ ~"~_-,, ,.. ,-\_, v " ~. . ,'-- '..Ire," "";.--,,',,c ',;,"". '---. ,',- '-":-:;,--,'- ,~>'",-~" ''''-'-.'' .' 17. It is believed and therefore averred that Defendant r~; " has converted to his personal use and deprived Plaintiff of his .. " :[: right in, use and/or possession of partnership assets and profits. 18. It is believed and therefore averred that Defendant's '. f: deprivation and conversion of Plaintiff's right in, use and/or f: possession of the aforementioned assets and profits have been without Plaintiff's consent or lawful justification. !; i t 19. As a result of the actions of Defendant, Plaintiff has I:,: t, incurred damages in excess of twenty-five thousand ($25,000.00) f' ~ dollars. i .. i- t .. r t I [ !i W ~ ~- WHEREFORE, Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate. ;: , .. , COUNT FOUR REQUEST FOR ACCOUNTING Paragraphs 1 through 15 hereof are incorporated by reference as if the same were more fully set forth at length herein. 20. As partner in the partnership doing business as Central Penn Eye Care, Plaintiff has the right to review all 5 I' ,I II SAlOIS SHUffi.!!OWER &UNUSAY ~l.A.W UW.HlghSlreet Carlisle, PA -'--'''''C',-''--'' >.--'~:'_'i'_>,- , books, statements, bank accounts and other records relating to business transacted by or on behalf of the partnership. 21. Despite Plaintiff's requests to review the aforementioned partnership information and documents, Defendant has refused to produce the same or otherwise allow Plaintiff's inspection of the same. 22. Plaintiff has been wrongfully excluded from possession of partnership property and profits, and as such has the right to a formal accounting from the Defendant under the Pennsylvania Uniform Partnership Act, 15 Pa.C.S.A.58335. WHEREFORE, in addition to the monetary damages set forth in Counts I through IV hereof, Plaintiff demands that the Court order Defendant to turn over to Plaintiff all partnership documents including, but not limited to corporate books, receipts, deposits, bank accounts, invoices, and patient files. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY , Date: l-t'J-c-o By: , Esquire Supreme Court ID # 5551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff 6 I I II II SAlDlS SllUft.!!pWER &Lll'llJSAY All~"'Aw 26 W.lIigh Street Carlisle, PA VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subj ect to the penal ties of 18 Pa. C.s. ~ 4904, relating to unsworn falsification to authorities. 5. DATED: I -) ~ "/ '<..' ~!~~~/ !~, David S. Thomas i [ R r j; , l , I f ~ , t , , [ l " I I ~ ,~ ---j[ ~n~rn @@[PW PARTNERSHIP AGREEMENT THIS AGREEMENT, executed this ~ day of September, 1995, between RONALD J. HUNZIKER and DAVID S. THOMAS, hereinafter collectively referred to as the "Partners". WITNESSETH: The parties do hereby form a 1. Name and Business. Partnership under the name of Central Penn Eyecare to perform optical services as agreed between the Partners. The principal office of the Partnership shall be maintained at 5244 simpson Ferry Road, Cumberland County, Pennsylvania 17055. The ownership interests of the Partners subject to other provisions of this Agreement, shall be as follows: Ronald J. Hunziker David S. Thomas 50% 50% 2. Term. The Partnership shall begin on October 1, 1995 and shall continue until terminated; provided, however, that any acts, including, but not limited to the entry into negotiations for and the execution of any agreements, commitments, contracts, writings or other understandings by any Partner in furtherance of the business of the Partnership prior to such date is hereby ratified and confirmed as an authorized and valid action of the Partnership. 1 "- , -"" 3. Capital. The initial capital of the Partnership shall be the sum of $10,000.00 in cash, of which each Partner shall contribute the following amounts: Ronald J. Hunziker David S. Thomas $5,000.00 $5,000.00 The Partners agree to contribute in proportion to their respective ownership interests any additional funds necessary to organize the partnership or to enter into and carryon the business of the Partnership. A separate capital account shall be maintained for each Partner. No Partner shall withdraw any part of his capital account without the written consent of all Partners. If the capital account of a Partner becomes impaired, his share of subsequent partnership profits shall be first credited to his capital account until that account has been restored, before such profits are credited in his income account. The net losses and the net profits 4. Profits and Loss. shall be borne by the Partners in accordance with their respective Partnership ownership interests. A separate income account shall be maintained for each Partner. Partnership profits and losses shall be charged or credited to the separate income account of each Partner. If a Partner has no credit balance in his income account, losses shall be charged to his capital account. Profits and losses shall be credited or debited to the income account of each Partner 2 I, ~, " as soon as practicable after December 31 of each year or at such more frequent times as agreed to by the Partners. 5. Salaries and Drawinqs. The cash flow of the Partnership, if any, shall be distributed at the discretion of the Partners, but at least semiannually. No Partner shall receive salary, compensation or guaranteed payments unless such salary, compensation or guaranteed payments be approved by a unanimous vote of the Partners. In addition to distributions of cash flow by the Partners, each Partner may, from time to time, withdraw the credit balance inuring to him by reason of his income account with the unanimous consent of all Partners. 6. Interest. No interest shall be paid on the initial contributions to the capital of the partnership or on any subsequent contributions of capital except for interest earned on money deposited in an interest-bearing checking account. If, however, the Partners unanimously agree to borrow money from any Partner, and that borrowing is evidenced by a note executed by all Partners, then interest in accordance with the terms of the note may be paid. 7. Manaqement, Duties and Restrictions. Each of the Partners shall have an equal voice in the management of the Partnership and shall have the right and power to do and perform 3 .,^I ~ '-^;'_'K- ~.~--:o all acts incident to the business of the Partnership and deemed by said Partners to be desirable and beneficial to the interest of the Partnership; provided, however, that no Partner, without the consent of all the Partners, may: (a) Borrow money in the Partnership name for partnership purposes or utilize collateral owned by the Partnership as security for such loans; (b) Assign, transfer, pledge, compromise, or release any of the claims of, or debts due, the Partnership, except upon payment in full, or arbitrate or consent to the arbitration of any disputes or controversies of the partnership; (c) Make, execute, or deliver any assignment for the benefit of creditors; or any bond, confession of judgment, chattel mortgage, deed, guarantee, indemnity bond, surety bond, or contract to sell or contract of sale of all or substantially all of the property of the Partnership; (d) Mortgage any partnership real estate or any interest therein or enter into any contract for any such purpose; (e) Pledge or hypothecate or in any manner transfer his interest in the Partnership, except to the other parties to this Partnership Agreement as provided herein; (f) Become a surety, guarantor, or accommodation party to any obligation; (g) Make oral or written contracts and/or purchases in excess of Five Hundred Dollars ($500.00), except for emergency situations. 4 .. - , 1.--, 7"_ ~ iIIt,.,~ Each Partner may have other business interests and may engage in any other business or trade, profession or employment whatsoever, on his own account, or in Partnership with or as an employee of or as an officer, director or shareholder of any other person, firm or corporation, and he shall not be required to devote his entire time to the business of the Partnership. No Partner shall be obligated to devote more time and attention to the conduct of the business of the Partnership than shall be required for the supervision of the ownership, operation and management of the Partnership. 8. Vacations and sick Leave. to vacations I sick leaves I and business as follows: (a) Each Partner shall be entitled to two (2) weeks of vacation in each calendar year to be taken at the time that may be most convenient to the Partnership and the Partners individually. Any vacation not used in one year may be used in a future year only with the approval of the Partners. (b) Each Partner shall be entitled to one (1) week of sick leave each calendar year without adjustment in earnings because of actual sickness or accident to the Partner or to any member of his or her immediate family. sick leave not used in one year may not be carried over to future years or used for additional vacation. Each Partner shall be entitled absences from, the Partnership 5 - ' ',I " .'!!iIm'~, (c) In addition to the vacation and sick leave provided for in this paragraph, each Partner shall be entitled to be absent from the Partnership business for five (5) days each calendar year for the purpose of attending professional meetings or taking postgraduate courses. (d) Should any Partner become fully or partially disabled, no compensation shall be paid to the disabled Partner unless the non-disabled Partner agrees to certain compensation. It shall be the responsibility of each Partner to obtain his own disability insurance. Premiums for disability insurance may be paid from the Partnership bank account if all Partners agree to this manner of payment. 9. Bankinq. All funds of the Partnership shall be deposited in its name in such checking account or accounts as shall be designated by the Partners. withdrawals therefrom may be made upon checks signed by any Partner. Maintaining the bank account or accounts will be the responsibility of Ronald J. Hunziker, Partner. 10. Books. The Partnership books shall be maintained at the office of the Partnership, provided that each Partner or his duly authorized attorneys or accountants shall at all reasonable times 6 ~~ -, ^"-IRlliI'b"~'-- have access thereto. The taxable year of the Partnership shall be the calendar year. The books shall be closed and balanced at the end of each such calendar year. Preparation of monthly statements is the responsibility of Ronald J. Hunziker, Partner. Maintaining all prepared statements, other relevant documents and distributing all information to the Partners shall be the responsibility of David S. Thomas, Partner. Preparation of the annual Partnership tax returns will be the responsibility of David S. Thomas, Partner. 11. Voluntary Termination. The Partnership may be dissolved at any time by agreement of the Partners, in which event the Partners shall proceed with reasonable promptness to sell any personal or real property owned by the Partnership and to liquidate the business of the Partnership. Upon dissolution, the assets of the Partnership business shall be used and distributed in the following order: (a) to payor provide for the payment of all Partnership liabilities and liquidating expenses and obligations (including loan repayments to the Partners so entitled, if any); (b) to pay to each Partner having a positive balance in his income account the amount thereof; (c) to balance the capital accounts of the Partners, in proportion to their Partnership Interests; (d) to discharge the balance of the capital accounts of the Partners; and (e) any excess shall be distributed prorata in accordance with the Partnership Interests. 7 -:-:--L , . ~', p '" ~~' 12. Withdrawal. (a) Any Partner shall have the right to withdraw from the Partnership by written notice of intention to withdraw served upon the Partners within sixty (60) days prior to his effective date of termination. The withdrawal of a Partner shall have no effect upon the continuation of the Partnership business. The remaining Partner, or, if more than one, Partners (herein "Partners") shall, at their option, have the right (1) to cause the Partnership to purchase the interest of the withdrawing Partner; or (2) to purchase themselves the withdrawing Partner's interest in the Partnership; or (3) to terminate and liquidate the Partnership business; or (4) to consent to a transfer of such Partnership interest to a third party. If the remaining Partners elect to have the Partnership purchase the interest of the withdrawing Partner, they shall serve notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw. If the Partnership determines not to purchase the Partnership Interest of the withdrawing Partner, anyone or group of remaining Partners may individually or collectively purchase said interest by serving notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw under the same rights and conditions as if the remaining Partners, acting for the Partnership, elected to so purchase. 8 -jlil!~'i (b) If either the partnership or one or more remaining Partners elect to purchase the interest of the withdrawing Partner or Partners in the Partnership, the method for determining purchase price and payment shall be the same as stated in paragraph 13 with reference to the purchase of a decedent's interest in the Partnership, except that if the withdrawing Partner elects a single payment, the purchase price shall be eighty (80%) percent of the value of the Partnership Interest as determined in accordance with paragraph 13 payable within sixty (60) days. If a single payment is not elected, a twenty-five percent (25%) payment of the withdrawing Partner's interest shall be transferred within sixty (60) days from the withdrawal date with the balance plus interest at prime plus one and one-half (1 1/2%) percent, to be paid within one year from the withdrawal date or upon mutually agreed upon terms of all Partners. (c) If neither the Partnership nor one or more remaining Partners elect to purchase the interest of the withdrawing Partner in the Partnership, the remaining Partners shall either consent to a proposed sale of the withdrawing Partner's interest or all Partners shall proceed with reasonable promptness to sell and to liquidate the business of the Partnership. The procedure as to liquidation and distribution of the assets of the Partnership business shall be the same as stated in paragraph 10. (d) If the withdrawing Partner decides to sell and assign his partnership Interest, and if the remaining Partners 9 ~J ~- , ~ , . ~'" ' consent to such transfer, the Partner or Partners acquiring said interest shall succeed to this interest of the withdrawing Partner for all purposes of this Agreement. The acquiring Partner(s) shall stand in the place of the withdrawing Partner, shall enj oy all rights and bear all liabilities just as the withdrawing Partner would have so done had he remained a Partner hereunder. Any acquiring Partner shall execute a Joinder Agreement which shall be a counterpart of this Agreement and any revisions or restatements hereof. 13. Death. The Partnership shall not be dissolved by the death of a Partner. Upon the death of any Partner, the spouse of the deceased Partner shall have the option to continue to engage in the Partnership's business. If the spouse elects not to continue in the Partnership's business, the spouse shall succeed to all of the rights and be subject to all of the obligations of the deceased Partner under this Partnership Agreement. If the spouse does not exercise the option to continue in the business, the Partnership may, at its option, exercisable in writing, purchase and retire the interest of the deceased Partner by giving written notice to the personal representative of the deceased Partner's estate within ninety (90) days after the death of the deceased Partner. If the Partnership does not exercise its option hereunder, then within thirty (30) days after the Partnership's failure to exercise such option, any Partner may, at 10 ,= ~~~<" his option, exercisable in writing, purchase the interest of the deceased Partner. In the event that more than one (1) Partner exercises the option under this Subsection, then, in that event, the interest of the deceased Partner shall be equally divided among those Partners. The Partner or Partners purchasing such interest shall be the sole and exclusive owner or owners of such interests. Notwithstanding any other provision in this partnership Agreement to the contrary, the purchasing Partner or. Partners shall have the right, at their respective option, individually or collectively, to prepay the purchase price, in whole or in part, at any time. Any such prepayment shall be applied first to principal and then to interest. If the deceased Partner's Partnership interest passes to any other person or no election is made by the spouse, Partnership, or Partners, as described herein, the Partnership is required to pay the fair market value of the deceased Partner's Partnership interest to the respective beneficiaries. The price at which the Partnership must pay to beneficiaries or the price the surviving Partners may purchase the interest of the deceased Partner hereunder shall be determined in accordance with provision 13 hereinafter. The payment of the deceased Partner's interest shall be executed by a payment equivalent to twenty-five (25%) percent of the deceased Partner's interest at the date of death payable within ninety (90) days after the date of death with the remaining balance plus interest at prime plus one 11 .=. . . ~'~_.t' . , and one-half (1 1/2%) percent, to be paid within one year from the date of death or upon mutually agreed upon terms of all Partners. 14. Valuation of the Interest of a Sellinq or Deceased Partner. On exercise of any aforesaid options described in Paragraph 11 or 12 of this Agreement, the remaining Partners shall pay to the person legally entitled thereto the fair market value of such partnership interest together with the full unwi thdrawn portion of such deceased, withdrawing or terminated Partner's distributive share of any net profits earned by the Partnership between the date of such accounting and the date of dissolution of the Partnership. Fair Market Value for purposes of determining the valuation of property shall be that value agreed upon among the Partners, of if they are unable to agree upon a value, by a fair market value determined by two independent attorneys or C.P.A.s in the area and taking the average of their two valuations, with one appraiser being selected by the remaining Partners and the other appraiser being selected by the outgoing Partner or personal representative of the deceased Partner. 15. Votinq. Except as otherwise provided herein, each Partner shall be entitled to one vote in all matters requiring unanimous consent or other Partnership decision provided that the death, insolvency, bankruptcy or placing into receivership of any Partner shall terminate his voting rights, managerial rights and 12 I., . 'L. , , ~ '."" 1 -'." - -- ~-, " any and all other decision-making rights hereunder; in such event, the remaining Partners shall have full power and authority to vote, manage and decide as to all Partnership matters. 16. Insurance. The Partnership shall procure adequate liability and fire insurance; the type, amount and company or companies may be determined by the Partners. 17. Assiqnment. Except as provided herein, neither this Agreement, nor any interest of any of the parties herein (including any interest in monies belonging to or which may accrue to the Partnership as a result of rentals or sales of property) may be assigned, pledged, transferred or hypothecated, without the prior written consent of the other Partners. The right of any person, firm or corporation claiming by, through or under any party hereto (including, but not limiting the same to judgment or other creditors, receivers, trustees, assignees, garnishees, executors, administrators, etc.) to assert any claim against the right, title or interest of any Partner shall be limited solely to the right to claim or receive after the distribution of cash receipts to the respective parties has been completed and then only subject to the equities of the other parties as in this Agreement set forth. 18. Gender. When the context so requires, the masculine gender may be substituted for the feminine, the feminine for the 13 ...", .,ci;,_L ~~', . . masculine, and the neuter for either, and vice versa. The singular shall be substituted for the plural, and vice versa. 19. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Paragraph headings are for convenience only. This Agreement shall be binding upon the parties hereto, their heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND, have executed this Agreement the day and year first above written. C~'1/ Q-avll r ~ WITNESS: 14 " w 1"" ~_ fa_~D-"qrTrCE Or i h::: ;.:r.)(!i'.iC\N!Y"RY .._ , I ,<,,' ,l ;'~) I,.~ 1M 01 'flJ 'J' pM 3' 07 v 1!1i' ~4 I' '. CU~N;j':f:"".:: !\'\W'\ rl"UNTY d:.=-, 1t..-i""\t'ILJ .....U. I , PtNI\SYLVANlA . 45~)O ~ Itml ~\A G -- . I i . Ji .~ ~ ~ .~ 11 I I I ,~I I . 1 i c~ 16Co l '(; '?-t\- \6Ce 1 Y \ V^" ~, '~1 ". Ii~ - ._~ 10, ,~ _ ^ ~ '. .~ 1ilI' :J:i~ " .... 'WI SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-00509 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND THOMAS DAVID S VS HUNZIKER RONALD J 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: HUNZIKER RONALD J but was unable to locate Him in his bailiwick, He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 6th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge DEP, DAUPHIN CO 18,00 9.00 10,00 30,50 ,00 67.50 03/06/2001 SAIDIS,SHUFF, ~ R. Thomas Kli / Sheriff of Cumberland County FLOWER, LINDSAY Sworn and subscribed to before me this I~Y day of ~ ~I A,D. 0''14, C. h.,JR,"- A~ Prothonotary i _ ~~ I,~ ,,-, ,~ ilI~;', .....'.. , @iiitt of t4c ~1r~riff William T. Tully Solicitor Ralph G. McAllister Chief Deputy Mary Jane Snyder Rea! Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 171 0 1 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania THOMAS DAVID S vs County of Dauphin HUNZIKER RONALD J Sheriff's Return No. 0275-T - -2001 OTHER COUNTY NO. 01-509 AND NOW: February 27, 2001 at 8:30AM served the within NOTICE & COMPLAINT IN CIVIL ACTION upon HUNZIKER RONALD J by personally handing to HIM 1 true attested copy(ies) of the original NOTICE & COMPLAINT IN CIVIL ACTION and making known to him/her the contents thereof at DAUPHIN COUNTY SHERIFF'S OFFICE RM 104 FRONT & MARKET STS, HBG, PA 17101-0000 Sworn and subsc~ibed to So Answers, JR~ b"~'"~ "P="' ( PROTHONOTARY Sheriff of Dauphin county, Pa, By~(~1 ~ I Deputy Sheriff Sheriff's Costs: $30.50 PD 02/01/2001 RCPT NO 145886 STUMP " I .~, <= ~- L-- = '-';-j" ~'."".~, -- '. --'- .... Ie. The Court of Common Pleas of Cumberland County, Pennsylvania 1 David S. Thomas VS, Ronald J. Hunziker No, 01 5Q9 Ciui 1 Now, 1/25/01 , 20 () () , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to exe.cute this Writ, this deputation being made at the request and risk of me Plain.tiff,. 1/ . LIt ~ " . ' ~~-~~# Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 , at o'clock M. served the within upon at by handing to a copy ofthe Oliginal and made Imown to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of 20 ~, - COSTS SERVTCE MILEAGE AFFIDAVTT $ $ -- 1 .........~~J . .'i... ])A VID S. THOMAS, Plaintiff : INTllEI3OURTOFCOMMON PLEAS : ct.JMJl1lll.LAND COtlNI'Y, PBNNSU..v ANIA : NO, 01-509 e;..u : ClVILACI10N-LAW : JURy TlUALDEMANDED V$, RONALD J. HUNZIKER, Defendant 1>RlUU,fiNAaYOBlECTIONS I. InsufficlentSpedficlV in a Pleadillg 1. Counts IthroughIVofP~~ Complalntfail to specifttaIly identify1i1f: amount lost or tile means by which such loss WlIS OCCMin.,.,A V\1HERBF0RE, Defendanr pn}'! Your Honorable ~to dis.o.1i$s tile Complaint h~ herein filed against him. n. ~61..d"'Qh.cauaeof Action 2. Count 4 of'P!alluifps Complairitseeksan accounting. 3. Such celief should be sought in equity and not joined with Counts I through m. WHEREFORE, Defimdant~ YQurHonorableCourtrodismi$s CountIVoftheComplaint fued against him. Respectfully submitted, Datc: 06/08{O1 ~_ l&..-.t~~,~", , ,,' ,~""".1"''''M'''; i jlliif':Gii:i;' "M~~~i~;ji~W&,fr~mrn~"" ~(iii"'Lfa_mM''''" "lili>i';"-~': '--"'cl~""'IF" ~~~~ LU~ ~"",......,~" _I 0 .0 0 c: un s:: '- -occ ~ \--"1'. ~ ':;-"i-:; rorT' ~- Z:::o \ 't)\..~ fi.'i, O:l ::~1i~11 =<.2:-- c::CJ -0 ?:5 :D ~c; :Jr. :'"7(') .e.-;-n _0 ':? 9 J>C ~ C> 22: (/1 ~ , , SAlOIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, PA " " ." I:, 1-1 I DAVID S, THOMAS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 0/- S09 C;uil y~ RONALD J, HUNZIKER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AMENDED COMPLAINT NOW, comes the Plaintiff, David S. Thomas, by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and avers in support of this Complaint against Defendant, Ronald J, Hunziker as follows: 1. Plaintiff, David S, Thomas is an adult individual, residing at 730 Meadow Drive, Camp Hill, Cumberland County, Pennsylvania 17011, 2. Defendant, Ronald J, Hunziker, is an adult individual with a last known address of 221 North 62nd Street, Harrisburg, Dauphin County, Pennsylvania 17111, 3. On September 30, 1995, the Plaintiff and Defendant entered into a Partnership Agreement to operate a business under the name of Central Penn Eye Care to perform optical services with a principal place of business located 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. A true and correct copy of the Partnership Agreement is atta.ched hereto, incorporated herein, by reference marked as Exhibit "A". , II 1 SAIDIS SHUFF, FLOWER & LINDSAY ATIOKNEYS'AT-LAW 26 W. High Street Carlisle, PA :i I =-,--, I ' cu. 4. Pursuant to the terms of the Partnership Agreement, the Plaintiff and Defendant were each fifty (50%) percent owners of the partnership, 5. On or about October 1, 1995, the parties operated the business known as Central Penn Eye Care and distributed profits and losses in accordance with the Partnership Agreement. 6, On or about October 1, 1998, Plaintiff became ill and was unable to see to the day-to-day operations of the business, as he had done since on or about October 1, 1995, 7, Defendant advised Plaintiff to take his time and recover and Defendant took over the running of the business. COUNT ONE BREACH OF CONTRACT Paragraphs 1 through 7 hereof are incorporated by reference as if the same were more fully set forth at length herein. 8, During the time the Plaintiff was recovering and Defendant was operating the business, the Defendant removed and retained approximately thirty thousand ($30,000,00) dollars worth of partnership assets, including eyeglass frames and merchandise, 9, During this time period, Defendant also received payments and funds from customers which were not deposited into the partnership bank account nor shared with Plaintiff, 2 II SAlOIS SHUFF, FLOWER & LINDSAY ATrORNEYS.AT.LAW 26 W, High Street Carlisle, PA ~II ~~ 10, During this time period, Defendant opened up a separate bank account at which time he placed funds belonging to the partnership in the account for his own use, II, All the above actions were conducted by the Defendant without the prior notification, authorization or consent of the Plaintiff, 12. By Defendant's actions, he has breached the Partnership Agreement including but not limited to: '.1 .. (! , ii' i ~ a) Paragraph 4 dealing with Profits and Loss, b) Paragraph 5 dealing with Salaries and Drawings, and c) Paragraph 7 dealing with Management, Duties and Restrictions, 13, All totaled, the Defendant removed, retained or otherwise kept for himself, partnership proceeds in excess of $80,000,00, WHEREFORE, Plaintiff, David S, Thomas, demands judgment against Defendant, Ronald J, Hunziker, in an amount in excess of twenty-five thousand ($25,000,00) dollars, exclusive of interest and costs and such other relief as the Court deems appropriate, 3 II J; ~ L .,;.,.:... SAIDIS SHUFF, FLOWER & UNDSAY AlTORNEYS.AT.LAW 26 W. High Street Carlisle, PA ", I- I COUNT TWO BREACH OF FIDUCIARY DUTIES Paragraphs 1 through 13 hereof are incorporated by reference as if the same were more fully set forth at length herein, 14, As a partner in the partnership doing business as Central Penn Eye Care, Defendant has a fiduciary duty to the Plaintiff and to the partnership, 15, Included in the fiduciary duty is the duty of Defendant to hold as Trustee any profits derived by him without the consent of the other partners from any transaction connected to the conduct of the partnership, See Pennsylvania Uniform Partnership Act, 15 Pa.C.S.A.s8334. 16. Defendant has retained partnership assets and kept partnership profits for himself, without accounting for or sharing the same with the Plaintiff, 17, As a result of the actions of the Defendant, he is in breach of his fiduciary duties owing to the Plaintiff and the partnership, WHEREFORE, Plaintiff, David S, Thomas, demands judgment against Defendant, Ronald J, Hunziker, in an amount in excess of twenty-five thousand ($25,000,00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate, 4 Ii SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYs-AT.IAW 26 W. High Street Carlisle, PA .. -,- 1- COUNT THREE CIVIL CONVERSION Paragraphs I through 17 hereof are incorporated by reference as if the same were more fully set forth at length herein, 18. It is believed and therefore averred that Defendant has converted to his personal use and deprived Plaintiff of his right in, use and/or possession of partnership assets and profits, 19, It is believed and therefore averred that Defendant's deprivation and conversion of Plaintiff's right in, use and/or possession of the aforementioned assets and profits have been without Plaintiff's consent or lawful justification. 20. As a result of the actions of Defendant, Plaintiff has incurred damages in excess of twenty-five thousand ($25,000.00) dollars, WHEREFORE, Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J, Hunziker, in an amount in excess of 5 Ii SAlOIS SHUFF, FLOWER & LINDSAY ATIORNBYS.AT-LAW 26 W. High Street Carlisle. PA .~ n ..,j I'f "c.. .', 1-. ~. twenty-five thousand ($25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate, Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: (,_').,/-0/ {kJL\/fY:!\,q"iCe Supreme Court ID #65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff By: 6 Ii SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYSeAT-LAW 26 W. High Street Carlisle. PA VERIFICATION L,,~ 1'--- I verify that the statements made in the foregoing Amended Complaint are true and correct, I understand that false statements herein are made subj ect to the penal ties of 18 Pa. C,S, ~ 4904, relating to unsworn falsification to authorities. DATED: C);?O/2t:D\ I I ltJJ.U~ Ii " ~n[brn @@IPW PARTNERSHIP AGREEMENT THIS AGREEMENT, executed this ~ day of s~t~mber, 1995, between RONALD J. HUNZIKER and DAVID S. THOMAS, hereinafter collectively referred to as the "Partners". WITNESSETH: 1. Name and Busipess. The parties do hereby fprm a Partnership under the name of Central Penn Eyecare to perform optical services as agreed between the Partners. The principal office of the Partnership shall be maintained at 5244 Simpson Ferry Road, Cumberland County, pennsylvania 17055. ThS! ownership interests of the Partners subj ect to other.~ provisions of this Agreement, shall be as follows: Ronald J. Hunziker David S. Thomas 50% 50% 2. Term. The Partnership shall begin on October 1, 1995 and shall continue until terminated; provided, however, that any acts, including, but not limited to the entry into negotiations for and the execution of any agreements, commitments, contracts, writings or other understandings by any Partner in ~furtherance of the business of the Partnership prior to such date is hereby ratified and confirmed as an authorized and valid action of the Partnership. EXHIBIT 1 IA . _, I ~~ b, ~L~~ . ~~' ~ - Each Partner may have other business interests and may engage in any other business or trade, profession or employment whatsoever, on his own account, or in Partnership with or as an employee of or as an officer, director or shareholder of any other person, firm or corporation, and he shall not be required to devote his entire time to the business of the Partnership. No Partner shall be obligated to devote more time and attention to the conduct of the business of the Partnership than shall be required for the supervision of the ownership, operation and management of the Partnership. 8. Vacations and sick Leave. Each Partner shall be entitled to vacations r sick leaves,. and absences from. the Partnership business as follows: (a) Each Partner shall be entitled to two (2) weeks of vacation in each calendar year to be taken at the time that may be most convenient to the Partnership and the Partners individually. . . Any vacation not used in one year may be used in a future year only with the approval of the Partners. (b) Each Partner shall be entitled to one (1) week of sick leave each calendar year without adjustment in earnings because of actual sickness or accident to the Partner or to any member of his or her immediate family. Sick.leave not used in one year may not be carried over to future years or used for additional vacation. 5 "V .,-..-J " , I -~ ; (c) In addition to the vacation and sick leave provided for in this paragraph, each Partner shall be entitled to be absent from the Partnership business for five (5) days each calendar year for the purpose of attending professional meetings or taking postgraduate courses, (d) Should any Partner become fully or partially disabled, no compensation shall be paid to the disabled Partner unless the non-disabled Partner agrees to certain compensation. It shall be the responsibility of each Partner to obtain his own disability insurance. Premiums for disability insurance may be paid from the Partnership bank account if all Partners agree to this manner of payment. 9. Bankinq. All funds of the Partnership shall be deposited in its name in such checking account or accounts as shall be designated by the Partners. Withdrawals therefrom may be made upon checks signed by any Partner. Maintaining the bank account or accounts will be the responsibility of Ronald J. Hunziker, Partner. 10. Books. The Partnership books shall be maintained at the office of the Partnership, provided that each Partner or his duly authorized attorneys or accountants shall at all reasonable times 6 ~~l ~ , ~I have access thereto. The taxable year of the Partnership shall be the calendar year. The books shall be closed and balanced at the end of each such calendar year. Preparation of monthly statements is the responsibility of Ronald J. Hunziker, Partner. Maintaining all prepared statements, other relevant documents and distributing all information to the Partners shall be the responsibility of David S. Thomas, Partner. Preparation of the annual Partnership tax returns will be the responsibility of David S. Thomas, Partner. 11. Voluntarv Termination. The Partnership may be dissolved at any time by agreement of the Partners, in which event the Partners shall proceed with reasonable promptness to sell any personal or real property owned by the Partnership and to liquidate the business of the Partnership. Upon dissolution, the assets of the Partnership business shall be used and distributed in the following order: (a) to payor provide for the payment of all Partnership liabilities and liquidating expenses and obligations (including loan repayments to the Partners so entitled, if any); (b) to pay to each Partner having a positive balance in his income account the amount thereof; (c) to balance the capital accounts of the Partners, in proportion to their Partnership Interests; (d) to discharge the balance of the capital accounts of the Partners; and (e) any excess shall be distributed prorata in accordance with the Partnership Interests. 7 ~~ -I ~"~~:; 12. withdrawal. (a) Any Partner shall have the right to withdraw from the Partnership by written notice of intention to withdraw served upon the Partners within sixty (60) days prior to his effective date of termination. The withdrawal of a Partner shall have no effect upon the continuation of the partnership business. The remaining Partner, or, if more than one, Partners (herein "Partners") shall, at their option, have the right (l) to cause the Partnership to purchase the interest of the withdrawing Partner; or (2) to purchase themselves the withdrawing Partner's interest in the Partnership; or (3) to terminate and liquidate the Partnership businessj or (4) to consent to a transfer of such Partnership interest to a third party. If the remaining Partners elect to have the Partnership purchase the interest of the withdrawing Partner, they shall serve notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw. If the Partnership determines not to purchase the Partnership Interest of the withdrawing Partner, anyone or group of remaining Partners may indi vidually or collectively purchase said interest by serving notice in writing of such election upon the withdrawing Partner at the office of the partnership within two (2) weeks after receipt of his notice of intention to withdraw under the same rights and conditions as if the remaining Partners, acting for the Partnership, elected to so purchase. 8 ~~ 0" " (b) If either the Partnership or one or more remaining Partners elect to purchase the interest of the withdrawing Partner or Partners in the Partnership, the method for determining purchase price and payment shall be the same as stated in paragraph 13 with reference to the purchase of a decedent's interest in the Partnership, except that if the withdrawing Partner elects a single payment, the purchase price shall be eighty (80%) percent of the value of the partnership Interest as determined in accordance with paragraph 13 payable within sixty (60) days. If a single payment is not elected, a twenty-five percent (25%) payment of the withdrawing Partner's interest shall .betransferred within sixty (60) days from the withdrawal date with the balance plus interest at prime plus one and one-half (1 1/2%) percent, to be paid within one year from the withdrawal date or upon mutually agreed upon terms of all partners. (c) If neither the Partnership nor one or more remaining Partners elect to purchase the interest of the withdrawing Partner in the Partnership, the remaining Partners shall either consent to a proposed sale of the withdrawing Partner's interest or all Partners shall proceed with reasonable promptness to sell and to liquidate the business of the Partnership. The procedure as to liquidation and distribution of the assets of the Partnership business shall be the same as stated in paragraph 10. (d) If the withdrawing Partner decides to sell and assign his Partnership Interest, and if the remaining Partners 9 ~,~J consent to such transfer, the Partner or Partners acquiring said interest shall succeed to this interest of the withdrawing Partner for all purposes of this Agreement. The acquiring Partner(s) shall stand in the place of the withdrawing Partner, shall enjoy all rights and bear all liabilities just as the withdrawing Partner would have so done had he remained a Partner hereunder. Any acquiring Partner shall execute a Joinder Agreement which shall be a counterpart of this Agreement and any revisions or restatements hereof. 13. Death. The Partnership shall not be dissolved by the death of a Partner. Upon the death of any Partner, the spouse of the deceased Partner shall have the option to continue to engage in the Partnership's business. If the spouse elects not to continue in the Partnership's business, the spouse shall succeed to all of the rights and be subject to all of the obligations of the deceased Partner under this Partnership Agreement. If the spouse does not exercise the option to continue in the business, the Partnership may, at its option, exercisable in writing, purchase and retire the interest of the deceased Partner by giving written notice to the personal representative of the deceased Partner's estate within ninety (90) days after the death of the deceased Partner. If the Partnership does not exercise its option hereunder, then within thirty (30) days after the Partnership's failure to exercise such option, any Partner may, at 10 ~, "---:. his option, exercisable in writing, purchase the interest of the deceased Partner. In the event that more than one (1) Partner exercises the option under this Subsection, then, in that event, the interest of the deceased Partner shall be equally divided among those Partners. The Partner or Partners purchasing such interest shall be the sole and exclusive owner or owners of such interests, Notwithstanding any other provision in this Partnership Agreement to the contrary, the purchasing Partner or.Partners shall have the right, at their respective option, individually or collectively, to prepay the purchase price, in whole or in part, at any time. Any such prepayment shall be applied first to principal and then to interest. If the deceased Partner's Partnership interest passes to any other person or no election is made by the spouse, Partnership, or. Partners, as described herein, the Partnership is required to pay the fair market value of the deceased Partner's Partnership interest to the respective beneficiaries. The price at which the Partnership must pay to beneficiaries or the price the surviving Partners may purchase the interest of the deceased Partner hereunder shall be determined in accordance wi th provision 13 hereinafter. The payment of the deceased Partner's interest shall be executed by a payment equivalent to twenty-five (25%) percent of the deceased Partner's interest at the date of death payable within ninety (90) days after the date of death with the remaining balance plus interest at prime plus one 11 "'"'"""'~ ~o L.,,~ and one-half (1 1/2%) percent, to be paid within one year from the date of death or upon mutually agreed upon terms of all Partners. 14. Valuation of the Interest of a Sellinq or Deceased Partner. On exercise of any aforesaid options described in Paragraph 11 or 12 of this Agreement, the remaining Partners shall pay to the person legally entitled thereto the fair market value of such partnership interest together with the full unwithdrawn portion of such deceased, withdrawing or terminated Partner's distributive share of any net profits earned by the Partnership between the date of such accounting and the date of dissolution of the Partnership. Fair Market Value for purposes of determining the valuation of property shall .be that value agreed upon among the Partners, of if they are unable to agree upon a value, by a fair market value determined by two independent attorneys or C.P.A.s in the area and taking the average of their two valuations, with one appraiser being selected by the remaining Partners and the other appraiser being selected by the outgoing Partner or personal representative of the deceased Partner. 15. Votinq. Except as otherwise provided herein, each Partner shall be entitled to one vote in all matters requiring unanimous consent or other Partnership decision provided that the death, insolvency, bankruptcy or placing into receivership of any Partner shall terminate his voting rights, managerial rights and 12 - '. - ~> any and all other decision-making rights hereunder; in such event, the remaining Partners shall have full power and authority to vote, manage and decide as to all Partnership matters. 1.6. Insurance. The Partnership shall procure adequate liability and fire insurance; the type, amount and company or companies may be determined by the Partners, 1.7. Assiqnment. Except as provided herein, neither this Agreement, nor any interest of any of the parties herein (including any interest in monies belonging to.or which may accrue to the Partnership as a result of rentals or sales of property) may be assigned, pledged, transferred or hypothecated, without the prior written consent of the other Partners. The right of any person, firm or corporation claiming by, through or under any party hereto (including, but not limiting the same to judgment or other creditors, receivers, trustees, assignees, garnishees, executors, administrators, etc.) to assert any claim against the right, title or interest of any Partner shall be limited solely to the right to claim or receive after the distribution of cash receipts to the respective parties has been completed and then only subject to the equities of the other parties as in this Agreement set forth. 1.8. Gender. When the context so requires, the masculine gender may be substituted for the feminine, the feminine for the 13 ~~ "~ , JI ...: ~ , I ; masculine, and the neuter for either, and vice versa. The singular shall be substituted for the plural, and vice versa. 19. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Paragraph headings are for convenience only. This Agreement shall be binding upon the parties hereto, their heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND, have executed this Agreement the day and year first above written. WITNESS: 14 ,-""" "';;'1['; ~i,j~~ -'" , K~~~il1m~~'~*iI'~l'ibiitiIM~iIMI' ~ ~~~" ~ ~, .'>,'-, ~Y.' ".'" ~" '-" lil ~' L'ti!] .,"b! 0 C~, c: ;:."~ ~, -- h~l v ITf ; 2: ;:.::.: 1". ) C. , ~ , ..::;.--- ,"-, /.... c5 5> L,,.) C .::;j Z ~b: -, :0 -< en, -< " -,,- ~ , j - ..........~. J.~;' It , DA V'If) S. THOMAS, Plaintiff V$. : IN TIm COURT OF COMMON PLEAS : CUMBEllLANDCOUNIY,Pl!NNSYLVANIA : NO, In-509 Civil : CIVlLACITON - LAW : JURYTlUALDEMANDBD RONALD J. HUNZIKER, Defendant NOTICE TO PLEAD TO, David S. Thomas c/o JosephL. Hitchings, Esquire 26 West High Street Cal-lisle, PA 17013 yOU .ARE REQUIlUID to plead to the within Answer With New Matter within twenty (20) days of service heteof or a default ~ By; may be entered against you. 2'd EE'!"ON Nt!wZ.Ll:;:>I 5<i3flal05 Wd€2: 2 .i002 . 0€ 'Ti; ~,,,,,-"",~~ L, _ .ii!C.,_l!4lIl,,-,o" , , CERTIFICATE OF SRRllICE r hereby catify that I am this day saving:l. copy of the foregoing document upon the person and in the manner indicated below, wbich servia: satisfies the requ.iremenr.s of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Joseph L. Hitchings, Esquire 26 West High Street CMlisle, PA 17013 Date: 07/30/01 "'.U 6'd 8::,/,'0.. N~WZ~~n ~dJaaIO~ Wd./.2:2 .002'0E'luf . .- ';i:.' .: IN THE CbURTOFCO.MMON PLEAS ':~COtJNIY,PENNSYLVM'IA __ __ d,' RONALDr:Hd.N~K., . .....M~~~ " ,- ""., ,> :~o:{)V$O!>Cioiii . : '. '...."-< ' ..; Cl.\7IL.A~iiQN- u:v/ '. : ]UR.YTRIALDBMANJ)EP . ..DEFENn~AN~~=~~BPcdM1>LAiNr. .' ANDNOWCOIIlOS~~Rdn.l.iJ.l-fl~"..;~':"wh9~pOnds~1>h;~mPsAme.nded.. COJnplaintanda~Jsjcl1~S: .... ..... .... .... .... .... ........ ..~.. .. . .~. 1. . "1\A;:";~'~~.infonri.rion.~ bdict...... 2, Adri1itted_. '. ........ '.. .... .'. ~:B~i1~.~t~~;E 3?~...:=:: Agrep'lentW~;~"#.2..~lill'g.~~'W~.......).>,.L~."."'.'.... ~...'c.. .......,........ . ..' 5. .' ..l)f:nied2sstareAIt.i&.~"'<ff..atft4t(jri()ia"oUtOcrobl:i-111995;t&e .arties . .' '-':--- '," ~.' .., .- _.' ~ '.,: "'.'- : '". .' .' . 'C". ::.- 0:::..,",' - -. . -. .' 7, operations of the bUSuieSs,~eiu:Witco(>tii'l1IedtoseetbatPloi:lltitt~edr~arpi1ymentsfrom the ~I" -;.; ~~"""-" " " COUNT I Tlre Answets r'1lltliinrrl in paragraphs 1 through 7 of plaintiffs A~nded Complai.nl: are incorporared herein as though set furth in rheir entirety. 8. DaUcd. I~is ad.m,.,.,..A 1hatduringWe period of time thatPlainliff'wasrecoveriogfrom his iUncss and Defo;1dant was solely seeing ll) the operation of the business, that Defmdantdid receive cemin paymems as earned compcnsati011 fOr his dfarls. By way of further answer, Defendant continued to see that Plaintiff, despiIc not wor,king on the day 1X) 'dliyopc:r:ations of We busincs&, co1Uinued ll) reteive paymen1S. To the exte.o.l: the avennents conJ"tinNt inparagtaph 8 of PlaintiH's Ame.nded.Complaintueintalded. to infet1hatall.pa~=eivedby DefQ\dantwa:eimproper, they are specifically denied. 9. Denied. as stmd.. To the e:xtent the averments contained in patagraph9 ofPlaintifPs Arn""ded ('.nrnr'.inr are inreaded ll) infer that4Uof~nt"s m:eipts of paymem:s_ improper, they arespeeifiC<llly denied, By\1ll'aY offurthetanswer, D<lfent!iil1t contirlue41X),see that Plaintiff" received regular paymenm from the business despirePlainti1f's WbiIity 1X) ~bum to thede.yll) da.yopen.tions of the business, 10. "tlm;vH!, 1X) the extmt that "During this time period" refers to the period of time in which plaintifF wasUDabIe to oonuibute to the day today operatiOns of the businI:ss. 11, Denied as stared. At all times questioned Plaintilfhad a right to request a mriew of partn.....hip books and al"CO"1IIlf, 12. The averments contained inparagraph 12 ofPlaintifPs Ametlded Complaint constitute conclusions of law to which DO mponse is required. To the exre.nttheyaxe deemcdfaaualin nature, it is denied that Def~s actionseonstituttd a1lRachofthe~~ as llIlIal.ded as a result of the Plaintift's iIl.ness, 13, . The averments ctlIlbined i.nparapph13OfP1llintllPsP."'>I'"~Complaint constitute conclusions oflaw to whkh 11ll_ponse iI tcquircd.rothe~,...jCdleyaredcantd factual in nature and not inrended to infer tbar all compel:I.!laIio.orectliVedby Dt.feDdarit. a reswr ofhis soIt operntion of the b\1Si.ness on a day to day basis were improper, they uespocin.'...llydQlied. ~ - ~"""'-"~-~",,=,<- ... 'WJi~II~9RE,1?c:f"a~ntnipedniRYlr.quesath.,rtbeCourtenferjudgrnentinhis favor and . , the PIainti1f~I;"-WilhaIi oiflf:r ieliettbe Court deemS ' agamtt ",~". ,~'.""~, ' ," "jUSt. ; ii"..,> ,....".,"',.,.,..",.<7~~~;-y ..',;.,...,.,' .,.,. .,.,' ".,',", ',', .,'. ~ , '., ";",,,', ~~~~~4~~ #~,oF~~~~~n'~~'~~~J7~Pi~~~!r~~~~.~~ntconstitute ~iofIaW~~1fio~&e.i$...~~.~?~,~~~~~.~~,f~ in :~~~-~~~~_.. .".-' .'.. ...;J L_" . ":7 .' , " , ,,~',COUNTm ~ to pUagraphs 1 throUgh 17ofI'i:W1tifrs Aini>,ntlNl CoInpbintueincorpomttdherein as thoughsetfonh~t\,p;.'tri..,ty, '".' ", '. ,,', '~""""" ~,,' ". ,'...,""~. ,',.. ,', ", ,.' which. PIait1tifPs1llla1thpg.;.Ii1tf~j,;m"froili~oi.tso., 20, The~n~ l'.oo~irie4lilPii~l~;\,:~:.'OXrip"iMcbn5titute conclusiomofia;.,~towbir1i'n01t8.POnse~ttilliied:" -rd,fbe";.. ' ~thcy are deo.ied. WEE, REF,"Ol:t6.~m~;Il;.ntheCo.ut:entCr'1A"""'" ,', inhisfavorand ~, .," ','. ~~,,~:t"""~~'~ ,.J' 8'"- .. 'tbePl~ift~1."'''i\ViIK.tt~,..1i~ffie&&t~; "'~'" agaJJlSt ~' ~ , ~",' , ",',' " ',' JUst. NiW:lwtITmt PlaintitfS~_"",,~ig~fif~:~~~~ef~:j~'iiitipori.whitbrclid' can 1. ~~ / :: ~/ :r~::~;~lr ~,,"ri~aDdtbecol~rigl.~~~t;'li.i!~:? of tbebusinas; ",',';'.'. .'.",--- ".",----,'; ~~~~t\I,s, V.%~!~C~ .~~~ ~-'~~" i!U~ ' , " ""~ " L ~~ ~~_~",,"",),r 4, An funds received by the Defendant were proper compensationfor his eft'om in seeing to the day to day opentio.os of the business, 5, plaintiff' CflntlnnM to receive regular paymenl3 throughout the period of his .il/ne$s despite his failure to put fo.tth any effort to the profitable Opention of thc: btWness. 6, Plaintift's ~ illness resultedinPlaintift's bleach of the partneI5hip Agr"""'PIlT 7. It is believed andtherefore aveued that Plaintiffhas converted for his own penonal use certain partnership assets, . llesp<<tfully submitted, B Date: 07/30/01 L'd EEL 'ON NtiWZl.tJ>1 :Jd3fia-105 Wd92 : 2 -'002 .02 . -ICU..' ^,~_.c u~11I -- ~, ,', ~-""'>< VERTFICATION 1, Ronald J. Hnn7.ilc...., hereby acknowledge that I have read the foregoing ANSWER TOPLAlNflFFS.AMENDED COMPl..(\INTWITHNEWMA'ITBRandthatthefacts stared therein are ttne and correct to the best of my knowledge, information, and belief. I W1derstand that anyfalse st:atemmts herein are made subject to penalties ofl8 Pa, C,S, S4904, relating to unsworn falsification to authorities. Date: 8'd EEL 'ON NtiWZ1J:I>1 :Jd)ffCflW WdL2: 2 'CGG2 . BE: 'T.r ~-- "','- '"' " _ I" ,;,,',,'.. 0-- ,~',",-- , "~ __; i~'-,-<k'''':'''=,.",;'i,';.:, '" ,,'I~~ \ \ DAVID S. THOMAS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO,Ol-509 Civil RONALD J, HUNZIKER, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER AND NOW this "),.;..,.CA day of fj01"~ T- , 2001, comes the Plaintiff, David S. Thomas, by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and replies to Defendant's New Matter as follows: I, The averments of Paragraph 1 constitute conclusions of law to which no responsive pleading is required, 2. The averments of Paragraph 2 constitute conclusions of law to which no responsive pleading is required. 3, Denied, There was never any modification of the partnership agreement, nor was there any written document signed by the parties relating to the roles, rights and responsibilities of the partners after the Plaintiff's illness, 4, Denied, The funds received and illegally retained SAlOIS by the Defendant were not proper compensation, By way of SHUFF, FLOWER & LINDSAY further answer, while the Defendant was retaining partnership AITORNEYSIATlLAW 26 W. High Street funds for himself, he neglecting to pay creditors, Carlisle, PA was nor was he providing information to the Plaintiff despite repeated requests for business records and accounting records, ~ SAIDIS SHUFF, FLOWER & LINDSAY ATI'ORNEYS-AT.LAW 26 W. High Street Carlisle. PA n"' ~' .' "-,'" ;- ~-, .1- "',-0,,',"",, "'-"'" ,,,,,:'~", ;,~.-:i-,-d~",J;.;"'~,f:i1i,,,\y' "" ~, ~ 5. Denied, Plaintiff did not continue to receive regular payments throughout the period of his illness, The same is therefore denied and strict proof of the alleged "regular payments" is demanded at the time of trial, 6, The averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that the averments may be deemed factual in nature, it is explicitly denied that the Plaintiff breached the parties partnership agreement, but rather it was the actions of the Defendant, including his illegal retention of the partnership assets and funds which caused the material breach of the partnership agreement, 7, Denied, Plaintiff has not converted for his own personal use any partnership assets, so the same is denied and strict proof thereof is demanded at the time of trial, WHEREFORE, Plaintiff, David S, Thomas, demands judgment in his favor and against the Defendant, Ronald J. Hunziker, as set forth in Plaintiff's Complaint, Respectfully submitted, Date: 7~':<A -0 I By: ES'CJ:Qi e 'upreme Court ID #65551 ".... 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for plaintiff , II '" ~ "{ ;- - .' ~v'" '~ ,,,',,.,;, - ~-" '~d , \ VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct, I understand that false statements herein are made subj ect to the penal ties of 18 Pa, c,s, ~ 4904, relating to unsworn falsification to authorities, DATED: ~/Z2./2()o1 ~1~~~W2- David S. Thomas ~ ~ , ,,~ ~, ,,^1.;..~'k ~ ~ , " .e_ ;i, .~~ 'OJ . SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYS.AT.LAW 26 W. High Street Carlisle, PA CERTIFICATE OF SERVICE (c\ 11 11111 On this .;)~ day of --++cJ'~L hereby certify that I served a true and correct , 20.D.L I copy of the foregoing Reply to New Matter upon all parties of record via United States Mail, postage prepaid, addressed as follows: Ronald J, Hunziker 901 Hawthorne Avenue Mechanicsburg, PA 17055 SAIDIS, SHUFF, FLOWER & LINDSAY By,_1l~ 0,~ II :~' 4\(j ~, ~,,< ~ '.fiIW.AllIal';"";;'-~~~~~!!#!";~l'""'"'-1 .,i~l~. <."" '.''-''" -, "" ~, -"" ~- "v, "'~" , ~'~ """';"; (") C , 1:":; ,~ :;11a ,.1 III !; ::::5 7 Z c- r~_) (J) Lv_' -, ~ -'Or) Z C' C 5: , t',j c:: ::;~:'~\ :z; ,;- =<! -,- (...J .oJ -< . ~'" '~.ii ii&i$.l." 'mil !11~ ',." ,'- -- _ ' . ,,;' "., ' " -', - ,",: ~ - ~"~, '.,', "" .'" '--~" , , . ,>. (_!tGe~itten and sullnUtt:ed in_licate) ro 'mE p~AR1{ OF ,,~ C01.J1'lTY l"lea$e ll&1t. .ll'~ ~~!!! ~, (Check cne) ( fill!!:' JUIIiY tr:Lal at ttne nexit tKl'n af civil co,u:rt:. ( XX) ,jar trial wi tb::lut a jury, - - - - - - - - - - -- ..... - -,,- - - - - - - - - - - - - - - - - - - - - - - - - - - GM'TIClN OF CASE (entire ca~tionnu.stl$ $'it~~.;~ .full) DAVID S. THOMAS (~CI'le) ( X \ Civil Al::tfu.,'" La!I< Appeal fI1:llll -l\1IIbitratiMI (otrhei (iJr4(!lJint;i;$f) 'IS. RONALD J. HUNZIKER The trial list will be called on~ and TriaLs ~ee an Cp;e)Bp_ll) Pretrials will Ge held an (Brie,fs are due 5 days before pretrials.) (The ,~ listing this case for trial shall provide fbritlWith a coli'Yof _ ~1!Iie to' all ooum;el" ~t to looal M-e 214.1.) 'IS, No, 200l Civil 509 19 Indicate the attQ~ey. wd.ll try case for the party who files this prl!lecipe, JOSEPH L. HITCHINGS.,ESQUJRE. 203 WEST CARACAS AVENUE. SUITE 201. HERSHEY. PENNSYLVANIA. 17033 Indicate trial cG"il\1$-e1 J;o!:', 'othe1:' parties if kmwm: RONALD HlINZ1KFR.PRO-SE. 221 N. 62ND STRFET. HARRISBURG. PENNSYLVANINA 17111 @ate, J 6-1$;-,D).. ::'~~-~,. ~.., Att'orney for: This case is~;:!i:.,:r1l'l!';'"",'1. ~ilWu.~~~li!~;lilili~.JjK>l'~&1~--g;~Of.mlrffil~#'-'..[io1il1,,":iiiW!!;5MWE!:i\~~1~"''''l'0,*iclllil/jlif!i'M~~"ll:! ~ iIdii..~' ~~ -illl ":' 0 r:; C r",,; :::!?' c.'.:) ~xoij~; ::; ''I'' rnf:'~ -,~ ,::;: M-7-': . ", 2f,~- -, '-' ':Q ;,~' (,;r'> ,,.-, \ '::.-~,' r:;:C.' 4:) , ,~ - --" - -,--. ~c' ~p ~S.~fl '-C ~ S;-c .-"', ~ :::> 2:; f'0 ~ -- tii ~~'1i;" 1- DAVID S. THOMAS V. RONALD J. HUNZIKER "I _ J -' ,,' ~"'. ._~,.' iiIl1lll1~ili< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2001-0509 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23rd day of OCTOBER, 2002, a pretrial conference in the above-captioned matter is SCHEDULED for WEDNESDAY, NOVEMBER 20, 2002, at 9:00 a.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania, Pretrial memorandum shall be submitted by counsel in accordance with C,C.R.P, 212-4, at least five (5) days prior to the pretrial conference, TRIAL in the matter will be scheduled at the pretrial conference. Counsel are directed to have their calendars available, Se ItJ.;;.5-0.:b L~ cc: Joseph L, Hitchings, Esq, Ronald Hunziker, Pro ,~~ Taryn Dixon Court Administrator Edward E. Guido, J. ~~~4BliiJ~ 1 ,,~"'," ,'~ --= ~,~.~~~ , !'i!Ml:l\!!l~'Wl!@llWitlll!ll~lifl;t~~j.,l~~ , i! L~ \ ~~ '_>,"','~--~,~<~,~ \fNVlilASNN3d ,\IN!iO:::' (1'1' nij:!I:.WlJnO f. Z : ! i H'j S 2 1:)0 (,0 }J:l\flCi~C)f' :,:;;'~.I. :fO 3JUJC)-U::j'ljj -., E,) ,~, < ..< , "~ ," " '!!l~~' ,~~B t.J;.S,T~G ,~!illi;@!R T!!P:J\L (Mfu',s"t be ~itten and sUb1:litted in d1JPUcate) OCT1~ , ~,,..,,,.~,cy OF ...."""'r,'"".,'" ,.......,"'.-nv TO THE P""",,,,,-,,""",",,,' ,,'"'....,~.... ,-,^,'H. O 0 , 1"0 C Q-o~ g for JURY trial at the next teJ:ITI of civil d!tift' -< 2'::r- cr-o (XX )Jior trial witb:Jut a jury, 0!~. _ _ _ ~__.... _..... _ _ __...... _ ~'_ -:0. -:--:- _ _ _ _ _ _.... _ _ _ _ _ _ _ _ _ _ _ ~~_ 3__ )> ~~~ :;:? '/:::: _-1 ,:,:) -< r-.J Please U'.91:' ttie fo~g case: .:) :'n (Check one) ( _:;~1~ :~~8 ~~6, CAPTION OF CASE (entire caption nust ~stat~in full) (check one) ~~~ 5i :n -< DAVID S. THOMAS ( X) Civil ActidiU'.. LalI' Appeal f!Olll 4\\llbi trat ion (othei ('''''~';nt.~,-,." ..I ,l;.~~;I:.I'..iolii;:.L,.J vs. RONALD J. HUNZIKER The trial list will be called on~ and Trials corm;ellce on ('Pe;fen$;int) Pretrials will be held on (Briefs are due 5 days before pretrials,) (The party list.ing this case for trial shall provide forthwith a copy of tM pcr1lecijiile to aU counsel, pursuant to loea1. Rw.1e 214.1.) vs, 509 19 No, 2001 Civil Indicate the attor;trey wOO will try case for the party who files this praecipe: JOSEPH L. HITCHINGS, ESQUIRE, 203 WEST CARACAS AVE~YE, SUITE 201, HERSHeY, PENNSYLVANIA 17033 Indicate trial cG~sel :f.orother parties if kno;m: RONALD HIINZIKFR. PRO-SE. 221 N. 62ND STREFT. HARRISBURG, PENNSYLVANINA 17111 " 7. ;j,J,jLt "':'\' 'Ihis case is ~d:y: 'Ii,,,,:!:, tr$a.l, Signed:.,~ Print JQs,eph L. Hitchin,ii;; !;)ate, J 0-1 'S.-,O). Att'orney fa;::: !'?~~ , ~ ~=;1 ',"" , . . DAVID S, THOMAS, Plaintiff IN THE COURT OF COMMON PLEAS OF ClWffiERLAND COUNTY, PENNSYLVANIA V, RONALD J. HUNZIKER Defendant 0/- ~-0509 CIVIL TERM PRETRIAL CONFERENCE At a pretrial conference held November 20, 2002, before Edward E. Guido, Judge, present for the Plaintiff was Joseph L. Hitchings, Esquire, and for Defendant was David M. Steckel, Esquire, This is a nonjury trial involving the breakup of a partnership, Counsel have estimated it will take a full day to try, We have scheduled trial in this matter for Friday, January 17, 2003, at 8:30 a,m, Counsel are directed to immediately confirm the availability of their witnesses, We will not entertain any request for a continuance, absent a dire emergency, made later than 10 days from today's date, The parties are directed to pre-mark all exhibits and exchange them with opposing counsel by Monday, December 30, 2002, Any objection to the exhibits, other than relevency, must be made in the form of a motion in limine. All motions in limine with supporting authority must be filed by Wednesday, January 8, 2003, Any responses must be filed by Wednesday, January 15, 2003. Defendant's attorney has just become involved in this case, and did not have an opportunity to file a pre-trial statement. He is directed to do so within 7 days of today's date, The parties have been discussing settlement, At this point, we would not give greater than 50/50 odds. Jij-' - ~'--~UMJi~'$~it'~W~",,~~"'kil~Jvilll'~~'ID!I:tj,'lil~' 69_, - p(J of " -'11 ~, r;y '~iln 'n Pi ,0 <M',<' t ~'OJ L 3V' o~ "7 Jod , .- , \ "'""v^., ,,~,> ",' '~'_..",'^~" ,~ T"'~ ~ "_ _ ,-",",,",,,,,~,,,,..,_,"_ ". ~ .?~" ,""'" . < '" .-" "_ IiJjjJ:f1'iilt'Ja s_ ,- ~ -, 0 CJ 0 C "" " s:: z ~:;:! ""Om :::> mrn <:: M-;'J:! ~;:rj . '/- r- N <t}fT1 'e';;o 0, :;~l("J - ""-~ C)".l.. !<:o ,~"-" :1>0 """'-r' >'c, :J: Q:D z' :i>f! . ,: C'; orn ~ -l N ?IS (J'l -< , ~ <<i ,. 'Iii. . . k,",' ,:;::--'L. J . . . r Joseph L. Hitchings, Esquire For the Plaintiff David M. Steckel, Esquire For the Defendant It ~. ,~"''', .,:J, 1_. By the Court, ~=..~ .1W{~;. Edward E, Guido, J, ~f'1"V\{)tll!..t /I-;;'s'- o,v q,