HomeMy WebLinkAbout03-2034PAUL F. TIMMONS,
PLAINTIFF
VS.
ARTHUR R. KRALL,
DEFENDANT
IN THE COURT OF COMMON PLEAS
OF CUMBER/AND COUNTY,
PENNSYLVANIA
NO. O3 - ,,2D~ ~ CIVIL TERM
CIVIL ACTION - LAW
NOTICE TO DEFEND AND CLAIM RIGHTS
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 OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle PA 17013
(717)249-3166
1-800-990-9108
PAUL F. TIMMONS,
PLAINTIFF
VS.
ARTHUR R. KRALL,
DEFENDANT
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
:
: NO.O3 - ~,OJ~t CIVIL TERM
: CIVIL ACTION - LAW
COMPLAINT
AND NOW, comes the Plaintiff, PAUL F. TIMMONS, by and through his counsel,
Susan Kay Candiello, Esquire, of the Law Firm of Susan Kay Candi¢llo, P.C., and files this
Complaint, based upon the following:
1. The Petitioner herein is PAUL F. TIMMONS, an adult individual residing at
1465 Hillcrest Court, Apartment 610, Camp Hill, Pennsylvania, 17011.
2. The Defendant herein is ARTHUR R. KRALL, an adult individual residing at
1840 Oak Ridge Court, Lebanon, Pennsylvania, 17046.
3. The business referred to herein is Hi Performance Leasing LLC (hereinafter
known as "HPL"), a limited liability company doing business as a maintenance
and repair company for Performance Freight Systems, Inc. (hereinafter known
as "PFS") and other trucking companies. HPL is located at 160 Lamont Street,
New Cumberland, Cumberland County, Pennsylvania.
4. Plaintiff is married, but presently in a divorce action with Sally A. Timmons,
which has been filed in Cumberland County, Pennsylvania, docketed at 2002-
3402 Civil Term.
5. During the marriage, Plaintiff and Defendant entered into an equal (50/50)
partnership to do business as PFS, a trucking business.
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10.
11.
12.
In 2001, Plaintiff and Defendant entered into an equal (50/50) partnership to
do business as HPL, a company to provide maintenance and repairs to the
trucks for PFS. HPL later expanded the business to offer these services to
other trucking companies.
For a variety of reasons PFS is about to file bankruptcy.
Plaintiff has never received any income or removed any profits or assets from
HPL. Defendant has been the sole individual to handle and benefit from the
assets of HPL.
Defendant owes Plaintiff the sums of Thirty-Five Thousand Dollars and No
Cents ($35,000.00) and Forty Thousand Dollars and No Cents ($40,000.00)
resulting from a stock option exchange between Plaintiff and Defendant for
PFS and HPL, which Defendant has not yet paid to Plaintiff. (Please see a
copy of the Articles of Agreement and Stock Assignment Agreement between
Plaintiff and Defendant attached hereto and made a part hereof at Exhibit "A").
Plaintiff's equal share of the HPL profits and assets and the notes for
$35,000.00 and $40,000.00 are marital property.
Plaintiff believes Defendant has removed significant profits and assets from
HPL, unknown to Plaintiff and to which Plaintiff has the right to an equal
share.
Plaintiff has requested, but Defendant has refused to cooperate in sharing the
requisite information for HPL, which would enable Plaintiff to determine what
portion of the profits and assets of HPL belong to Plaintiff and are therefore
marital property.
Court:
13. Plaintiff has requested, but Defendant has refused to pay to Plaintiff the notes
for $35,000.00 and $40,000.00 due and owing the Plaintiff, which are also
marital property.
14. Plaintiff believes, as a result of diligent investigation and interactions with the
Defendant, the Defendant has already and will continue to take such actions to
hide and/or make unable to locate the profits and assets of HPL.
15. Defendant has threatened Plaintiff with selling or otherwise encumbering all
the assets of HPL, without the knowledge of Plaintiff.
16. Defendant's ability to remove most if not all of the profits and assets of HPL
would result in irreparable harm to Plaintiff, his wife, Ms. Timmons, and their
children, which harm would include, at a minimum, the following:
A. It would deprive Plaintiff, his wife, Ms. Timmons, and their children of the
only real means of their financial support and income; and
B. It would deny Plaintiff access to complete financial information regarding
this entity and its operation, which information is necessary to properly settle
the divorce action; and
C. It may place these assets beyond the.jurisdiction of this court for purposes of
equitable distribution of the marital property owned by Plaintiff; and
D. It would place the control of this entity into the hands of a third party whom
Plaintiff believes would be hostile to his and his family's financial and legal
interests and rights.
WHEREFORE, Plaintiff, PAUL F. TIMMONS, respectfully requests this Honorable
mo
Bo
Order and direct the Defendant to provide the Plaintiff with complete financial
information about the marital business entity, specifically HPL, including all
records, documents, and statements of all financial transactions HPL has
engaged in since becoming a business, specifically identifying the payments
and benefits Defendant has received from these records, documents and
statements, and all account statements of any nature and/or other records into
which the Defendant has placed or caused to be placed any assets from HPL
since HPL became a business.
Take such further action, and enter any further orders, as the court deems
appropriate to protect Plaintiff's interest in the marital property, specifically
HPL, and the financial needs of Plaintiff and his family.
Dated: April c~, 2003
Respectfully submitted,
LAW FIRM OF SUSAN KAY CANDIELLO, P.C.
Susan Kay Candi~-~ire~-~'~-)
5021 East Trindle Road, Suite 100
Mechanicsburg PA 17050
(717) 796-1930
VERIFICATION
The undersigned hereby verifies that the facts averred in the foregoing document are true
and correct to the best of his knowledge, information, and belief. This verification is made
subject to the penalties of 18 Pa. C.S.A. {}4904 relating to unsworn falsification to authorities.
DATED:
PAUL FRANCIS TIMMONS
EXHIBIT "A"
ARTICLES OF AGREEMENT
THIS Agreement entered into the __ day of , 2002 by and
between ARTHUR R. KRALL, of 1840 Oak Ridse Court, Lebanon, Pennsylvania
(hereinafter referred to as "Krall") and PAUL F. TIMMONS, of 808 Wellington Drive,
Carlisle, Pennsylvania (hereinafter referred to as "TIMMONS").
WHEREAS, the parties hereto have previously entered into certain oral and
written agreements with respect to the rights and responsibilities of the parties related to
Performance Freight Systems (hereinafter "PFS") and High Performance Leasing, LLC
(hereinafter "HP"), and
WHEREAS, the parties desire to memorialize, clarify and consolidate all prior
agreements and understandings related to lip and PFS.
NOW THEREFORE, thc parties hereto, intending to be legally bound hereby, do
covenant and agree as follows:
Krall hereby releases and assigns to Timmons any and all of Krall's right,
title and interest in PFS including, but not limited to, any ownership
interest in the stock and the business of PFS (including but not limited to
all contracts, equipment, supplies and other assets of PFS).
Timmons, in consideration of the relinquishment of Krall's interest in PFS
as provided above, does hereby release Krall from any and all obligations
including, but not limited to, payments due to Timmons from Krall related
to the purchase of any interest in PFS.
'Timmons will promptly arrange for the transfer of all tractor and trailer
titles from HP to PFS. Timmons and Iq'all will use their best efforts to
obtain the release of Krall and HP from any and all obligations related to
the existing financing of said tractor-trailers.
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Timmons and Krall shall each remain fifty (50%) percent owners of HP.
Krall shall be the principal operating officer of the business of HP and
shall receive such compensation and benefits as the parties may mutually
agree. A copy of the initial compensation and benefits due Krall shall be
attached hereto and incorporated'herein as Exhibit "A".
The parties agree that HP may continue to lease the facilities currently
occupied by HP, under the terms and conditions more fully set forth in the
Lease Agreement attached hereto and incorporated herein by reference
thereto as Exhibit "B".
STOCK ASSIGNMENT AGREEMENT
IN CONSIDERATION of the amount of Seventy-five Thousand ($75,000.00) Dollars, due and
payable as hereinafter provided Paul F. Timmons (Timmons) does hereby sell, transfer and assign
to Arthur Krali (Krall) 25 shares of the common stock of Performance Freight Systems, Inc.
Payment therefor shall be due and payable as follows:
1. Krall does hereby assign to Timmons a certain note from Performance Freight Systems, Inc.
the face amount of Thirty-five Thousand ($35,000.00) Dollars, payable in 12 monthly installmems
together with interest on the unpaid principal in the amount o/'eight (8%) per cent per annum,
first payment due March 11, 1999.
2. Krall shall execute a note in favor of Timmons in the amount of Forty Thousand ($40,000.00)
Dollars to be paid, without interest on or betbre December 31, 1999.
Further, Krall shall be bound by all conditions and restrictions as may apply to said stock
including a right of first refusal for the re-purchase thereof by Timmons, or in the exercise of such
right, by the corporation, upon the same terms and conditions of any proposed sale to any third
party.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the 1 lth day of
February, 1999.
Arthur Krall
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court
list entire caption
PPAUL E. TIMMONS,
(Plaintiff)
V.
ARTHUR R. KRALL,
(Defendant)
No. Civil 2034 ,2003
Matter to be argued is PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
Identify counsel who will argue case:
(a) for Plaintiff Susan Kay Candiello, Esquire
Address: 5021 East Trindle Road, Suite 100
Mechanicsburg, PA 17050
(b) for Defendant: Greer H. Anderson, Esquire
Address: Reilly, Wolfson, Sheffey, Schmm & Lundberg, LLP
1601 Cornwall Road, Lebanon, PA 17042
I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
Dated: 6/2/03
JAttomey fo~ Defendant
Greer H. Anderson, Esquire - I.D. 85675
Loren A. Schmm, Esquire
Attorney I.D. #28039
Greer H. Anderson, Esquire
Attorney I.D. #85675
REILLY, WOLFSON, SHEFFEY,
SCHRUM & LUNDBERG LLP
1601 Cornwall Road
Lebanon, PA 17042
Ph: (717) 273-3733
Fax: (717) 273-1535
Attorneys for Defendant
IN THE
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL F. TIMMONS,
Plaintiff
VS.
ARTHUR R. KRALL,
Defendant
NO. 03-2034
CIVIL ACTION - LAW
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW comes Defendant, Arthur R. Krall, by and through his counsel, Reilly,
Wolfson, Sheffey, Schmm & Lundberg, LLP, and submits the following Preliminary Objections
to Plaintiff's Complaint pursuant to Pa.R.C.P. 1028(a):
10. This Order does not comply with the Pennsylvania Rules of Civil Procedure,
specifically, Rule 1531. Nor is the proposed Order the proper procedure for requesting a hearing
at this juncture in a civil action.
WHEREFORE, Defendant respectfully requests that this Court order Plaintiff to
separately plead and state a demand for relief for each cause of action averred in his Complaint;
if injunctive relief is sought, that Plaintiff amend the Complaint to conform to the Rules of Civil
Procedure for actions in equity as stated in Rule 1501 et seq.; that the Order accompanying the
Complaint be stricken; and that the Complaint be filed in Equity or in Law and Equity, in
accordance with the Pennsylvania Rules of Civil Procedure.
II.
PRELIMINARY OBJECTION RAISING AN ISSUE OF FAILURE TO
PLEAD WITH SUFFICIENT SPECIFICITY UNDER Pa.ILC.P. 1028(a)(3)
11. Defendant incorporates by reference the averments contained in Paragraphs 1
through 10, as if the same were set forth herein at length.
12. Plaintiffs Complaint alleges various possible causes of action that are not
discemable based on plain reading of the Complaint. Defendant can only speculate that such
causes of action include breach of contract, stockholders derivative action, injunctive relief, an
accounting and breach of fiduciary duty.
13. Plaintiffs Complaint fails to concisely aver facts supporting these possible causes
of action and as such does not conform to Pa.R.C.P. 1019.
3
14.
defense.
Based on the current status of Pla'mtiffs Complaint, Defendant cannot prepare a
WHEREFORE, Defendant respectfully requests that this Court order Plaintiff to
determine and specifically plead the causes of action he intends to maintain through his
Complaint.
III. PRELIMINARY OBJECTION IN THE FORM OF A DEMURRER
RAISING AN ISSUE OF FAILURE OF THE COMPLAINT TO LEGALLY
SUFFICIENTLY PLEAD A CAUSE OF ACTION FOR WHICH RELIEF
CAN BE GRANTED UNDER Pa.R.C.P. 1028(a)(4)
15. Defendant incorporates by reference the averments contained in Paragraphs 1
through 14, as if the same were set forth herein at length.
16. Pla'mtiff avers damages of $35,000.00 and $40,000.00 but does not plead a cause
of action by which he can recover those damages.
A Complaint on its face must plead sufficient facts for which the law will permit
17.
recovery.
18.
Under Pennsylvania law, to prevail under any cause of action, Plaintiff must
satisfy each element of each cause of action.
19. Plaintiffs Complaint has not averred the facts necessary to satisfy the elements of
the various potential causes of action that Plaintiff may be seeking in his Complaint, which may
include breach of contract, a stockholder's derivative action, an accounting or other injunctive or
equitable relief or, and breach of fiduciary duty.
4
20. As a matter of law, the relief Plaintiffs Complaint requests is not only
unclear but cannot be granted as the Complaint is pleaded.
WHEREFORE, Defendant respectfully requests that this Court grant
Defendant's Preliminary Objection by way of demurrer and dismiss Plaintiffs Complaint.
IV.
PRELIMINARY OBJECTION RAISING AN ISSUE OF FAILURE TO
JOIN THE NECESSARY PARTY UNDER Pa.R.C.P. 1028 (a)(5)
21. Defendant incorporates by reference the averments contained in Paragraphs 1
through 20, as if the same were set forth herein at length.
22. Plaintiff only named himself and Arthur R. Krall as parties to the Complaint.
23. Plaintiff refers to two business entities in his Complaint, Hi Performance Leasing
LLC ("HPL") and Performance Freight Systems, Inc. ("PFS").
24. Paragraphs 5 through 16 appear to claim damages from HPL and PFS.
25. Based on the plain language of the Complaint, Defendant cannot determine
against what entities Plaintiff is making claims. Any claims against HPL and PFS make them
indispensable parties to this action.
26. Plaintiff appears to be making claims on behalf of Sally A. Timmons, Plaintiff's
wife.
27. Sally A. Timmons is referred to in Paragraphs 4 and 16 of Plaintiffs Complaint
and the Complaint also seeks in the claim for relief such further action "the court [sic] deems
appropriate to protect Plaintiff's interest in the marital property, specifically HPL, and the
financial needs of Plaintiffand his family."
5
28.
Timmons.
29.
30.
Plaintiff's Complaint, therefore, includes claims made on behalf of Sally A.
Plaintiffhas not joined Sally A. Timmons as a party to this action.
Pursuant to Pa.R.C.P. 2227(a), the joinder of Sally A. Timmons, HPL and PFS is
compulsory and no reason appears in Plaintiffs Complaint for the omission of Sally A.
Timmons, HPL and PFS as parties to this action.
31. Sally A. Timmons, HPL and PFS are necessary and indispensable parties to this
action and the absence of each party requires that Plaintiffs Complaint be dismissed.
WHEREFORE, Defendant respectfully requests that this Court dismiss
Plaintiffs Complaint, or alternatively, order Plaintiff to add Sally A. Timmons, Hi Performance
Leasing LLC and Performance Freight Systems, Inc. to Plaintiffs Complaint, in accordance with
the causes of action and relief Plaintiff seeks.
BY:
Respectfully submitted,
REILLY, WOLFSON, SHEFFEY,
SCHRUM & LUNDBERG LLP
Lori~039
Greer H. Anderson, Esquire - I.D. 85675
Attorneys for Defendant
6
CERTi'FZCATE OF SERVTCE
GREER H. ANDERSON, Esquire, hereby certifies that a true and correct copy of the
attached PRELIMIINARY OB3ECT]~ONS TO PLAINTIFF'S CONPLA];NT was served by First
Class United States Nail on the date written below upon the following individual:
Susan Kay Candiello, Esquire
5021 East Trindle Road, Suite 100
Mechanicsburg, PA 17050
Counsel for Plaintiff
Dated:
Greer H~ Anderson, Esquire - I.D. #85675
PAUL F. TIMMONS,
PLAINTIFF
VS.
ARTHUR R. KRALL,
DEFENDANT
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
_.
: NO. 03-2034 CIVIL TERM
:
: CIVIL ACTION - LAW
._
PRAECIPE FOR WITHDRAWAL OF CIVIL ACTION
AND NOW, comes the Plaintiff, PAUL F. TIMMONS, by and through his counsel,
Susan Kay Candiello, Esquire, o£ the Law Firm of Susan Kay Candi¢llo, P.C., and requests to
Withdraw the above matter Without Prejudice.
Dated: June/~, 2003
Respectfully submitted,
LAW FIRM OF SUSAN KAY CANDIELLO, P.C.
Susan Kay Candifitt~t~e
Counsel for Plai~tiff~
PA I.D. # 64998 --
5021 East Trindle Road, Suite 100
Mechanicsburg PA 17050
(717) 796-1930
SHERIFF'S RETURN -
CASE NO: 2003-02034 P
C~MMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TIMMONS PAUL F
VS
FAR/ILL ARTHUR R
OUT OF COUNTY
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:
KR3tLL ARTHUR R
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of YORK
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
AND PETITIONFORE~ERGENCYRELIEF
On June 16th , 2003 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10o00
Dep York County 34.40
.00
71.40
06/16/2003
l~. Thomas Kline
Sheriff of Cumberland County
SUSAN KAY CANDIELLO
Sworn and subscribed to before me
this ~m~ day of~
J~3 A.P.
rothonotar~
COUNTY Of YORK
OFFICE OF THE SHERIFF
28 EAST MARKET ST., YORK, PA 17401
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
1 PLAINTIFF/S/
Paul F. Ti~mons
3. DEFENDANT/S/
Arthur R. Krall
SERVICE CALL
(717) 771-9601
INSTRUCTIONS
PLEASE TYPE ONLY LINE 2, THRU 12
DO NOT DETACH ANY (~)PIES
2. COURT NUMBER
Oq-?Oq4 civil
4 TYPE OF WRIT OR COMPLAINT
Notlce & Con~laint and P-etitlon
£or Emeraencv Relief
SERVE ~' 5. NAME~F~ND~ID~AL~MPANY~RP~RATi~N,ET~T~SERVE~RDESCRIPT~N~FPR~PERTYT~BELEV~ED~A~TA~HED~RS~LD
A~-thul~ R. Krsl l
0. ADDRESS (STREET OR RFC WITH SOX NUMBER, AF~ NO, CIT~ BORO, TWR, STATE AND ZIP CODE)
AT H± Perfomance [e~±ng 160 T,~ont Street New ~berl~d, PA 17070
7 INDICATE SERVICE: ~ PERSONAL O PERSON IN CHARGE ~DEPUTIZE ('~ ~,~dtf, F~&~:'mM~ gJ 1ST CLASS MAIL -}POSTED [.)OTHER
,20 03 I, SHERIFF OF'~iCOUNTY, PA, dp.~hereby deputi~e...t~ sheriff of
NOW Apr ilyork30 -- COUNTY to execute~~tu~ording
to law. This deputization being made at the request and risk of the plaintiff. ~ · __
I ~ SHERIFF OFICOUNTY
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
Mr Krall is part owner of business and is usually there frcm 4 - 5 PM.
~tUT OF COUNTY
CUMBERLAND
ADVANCED FEE PAID BY SHERIFF
NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same
without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sheriffs sale thereof.
9'T~O~Na"Yc~I~E~/~N~L'~RI~C~ar~S. IGN~NDLE RD. STE 100 MECHANI~t~°,NEj)~BER Jtl. DATEF'LED
17050 J796-1930 4-29-03
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be maimed).
CUMBERLAND CO SHERIFF
SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE BELOW THIS LINE
13 I acknowledge receipt of the writ 14. DATE RECEIVED 15, Expiration/Head Date
or complaint as indicated above. R. AHRENS 5-9-03 5-29-~3
1E,/~VED: PERSONAL( ) RESIDENCE( ) POSTED( ) POE~ SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW
1~6 ~ I herel~y cedify and return a NOT FOUND because I am unable to Icc, ate the individual, company, etc. name above. (See remarks below.)
])8~qAME A~D TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Dale of ,~ervice 20 lime of Service
J~e~ [t~/~eJ~2~ Date] ~meJMiel sJ~r~r/~ ~l~J II~ Date lime Miles Int. Date liro~ Miles Int. Date lime Miles Int. I Datej lirr~ M'es] ~t. JDatemm limeIMleSm Inb
22. REMARKS:
S SWERS
42. day of4f. AFFIRMED and subscribed to before me ~hiSJUNE. 20 ._~..~3~2~1,0~,~,~edffSi natureof --~'-~.~ ~'1 / S~ 45. DA~ ~//~/( ~
Cityo~t'ork ',%rrtCoun~ PA j ..... ,,. ,,~o~ /~~ 6-10-03
Coun~ Shedff
50. m ACKNOWLEDGE RECEIPT OF,THE SHERIFF'S RETURN SIGNATURE [ 51. DATE RECEI~D
OF AUTHORIZED ISSUING AUTHORI~ ~D TITLE
WHITE - Issuing Authority 2 PINK - Attorney 3 CANARY - Sheriffs Office
4. BLUE-ShedffsOffce