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HomeMy WebLinkAbout01-03563 -"'~'J! ANGINO & ROVNER, P.C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Stteet Harrisburg,PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attomeys for Plaintift\s) E-mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs. NO. 2001-3563 LAKESIDE HOLDING, INC. Defendant MEMORANDUM OF LAW 1. Factual and Procedural Historv: This case arises out of a claim by the Plaintiff Gloria Nickey to recover monies which she loaned to the Defendant in the form of payments for operating expenses, direct loans, and loan of restaurant equipment. At the time, Plaintiff Gloria Nickey was managing the restaurant and bar, Nickey's Lounge at The King's Inn, and was in discussions to purchase the business from the Defendant. After the sale never materialized, Plaintiff sought to recover her loans and the value of her restaurant equipment. Through her counsel, Joseph Hitchings, Plaintiff filed a Complaint on June 8, 2001 in Cumberland County and filed a Praecipe for Lis Pendens on June 12, 2001 on property owned by the Defendant. Service was made by the Cumberland County Sheriff s office on June 15,2001. Defendant Lakeside Holding filed a Motion to Strike the Lis Pendens as well as Preliminary Objections to Plaintiffs original Complaint through its original counsel, Robert 1. O'Brien. On August 13, 2001, Plaintiff filed an Amended Complaint. The Court subsequently issued a Rule to Show Cause Why the Motion to Strike the Lis Pendens should not be granted. Plaintiff filed a Praecipe to Strike Lis Pendens on September 12, 200 l. 323588 II ,i n- .'_~ "', No action was taken by the Defendant with respect to the Amended Complaint filed by the Plaintiff on August 13, 2001 for over three and a half years until Plaintiff retained new counsel to pursue the claim. Plaintiffs current counsel entered his appearance on March 16, 2005 and simultaneously sent notice of Plaintiff's intent to take a Default Judgement. Defendant's counsel then filed a Motion to Strike the Notice of Default Judgement and listed the matter for argument with the Court. Prior to a hearing and argument, Defendant's counsel sought a continuance and then explored the possibility of settlement with Plaintiff's counsel. Documentation in the form of Defendant's accounting ledgers prepared by Defendant's accountant and other documents were supplied supporting Plaintiffs claim. Unfortunately, Defendant's original counsel apparently developed a conflict and withdrew as counsel in September of2005. Subsequent to Defendant's new counsel's entry of her appearance, Plaintiffs counsel wrote on numerous occasions inquiring as to whether settlement was still a possibility and received no response. As a result, Plaintiff again sent a Notice of Intention to Take Default on January 19, 2006 to which Defendant has again filed a Motion to Strike Default Judgement as well as Notice to Strike Plaintiff's Amended Complaint. These matters are currently pending before the Court. II. Issue: Whether the Defendant has waived its right to object to Plaintiffs Amended Complaint where it did not timely file Preliminary Objections or a Motion to Strike the Amended Complaint until after Plaintiff filed a Notice of Intention to take a Default Judgement more than four and a half years after the Amended Complaint was filed? Suggested Answer: Yes III. Sununarv of Anrument Defendant Lakeside Holdings, Inc. is attempting to argue that the Plaintiff's filing of an Amended Complaint outside of the 20 days permitted for filing an Amended Complaint as a matter 323588 _cl. -, -~"'--- 'N ,6;1' .".'., _C_',,'_ .'c," ~_"~__" Y""'--M~ of course after service of Preliminary Objections requires that the Amended Complaint be stricken. The Pennsylvania Rules of Court nor case law supports this position. Plaintiff disputes the factual circumstances under which the Amended Complaint was filed and whether, in fact, it was filed without the consent of opposing counsel. The Amended Complaint was filed at most two weeks beyond the earliest date from which the 20 days permitted under the Pennsylvania Rules of Civil Procedure would have expired. However, after the filing of the Amended Complaint, Defendant Lakeside Holding took no action to raise an objection that the Amended Complaint did not satisfy Defendant's original Preliminary Objections by filing Preliminary Objections nor did Defendant move to strike the Complaint in at timely manner. In comparison, Defendant's Motion to strike the Amended Complaint now comes approximately four and a half years after the Amended Complaint was filed. Plaintiff maintains that Defendant has waived any right to object to Plaintiff's Amended Complaint, and Defendant should be required to fIle an Answer to the Complaint. Plaintiff has not entered judgement, but Defendant has chosen to challenge the Amended Complaint rather than answermg. IV. Argument: The Defendant has waived its right to object to Plaintiff's Amended Complaint where it did not timely fIle Preliminary Objections or a Motion to Strike the Amended Complaint until after Plaintiff filed a Notice of Intention to take a Default Judgement more than four and a half years after the Amended Complaint was fIled. A party may waive the right to object to defects in a pleading which is filed beyond the time that the pleading may be filed as a matter of course and without leave of court, by failing to take affIrmative action to move to strike or other appropriate objection to the untimely pleading. In Advance Building Services Co. v. F&M Shaffer Brewing Co.. 252 Pa. Super. 579, 384 A.2d 931 (1978), the Court examined the status of an amended complaint which was filed beyond the time 323588 ,.,. -< which plaintiff could file the amended complaint as of course. The majority recognized: Although the amended complaint was filed without leave of court or consent of appellee more than ten days after the filing of the preliminary objections, appellee waived this defect by failing to object. See. Pa.R.c.p. 1028(c), 1033. 384 A.2d at 932. In Advance Building Services. the preliminary objections were filed on November 15, 1994 and the amended complaint was filed on December 12, 1994, approximately two weeks after the 10- day time period then permitted by Pennsylvania Rule of Civil Procedure 1028. This is the same delay which the Defendant maintains resulted in this case. It is interesting that the dissenting judge on this panel, Judge Spaeth, would have decided this case on this issue alone and was in agreement with this portion of the majority's opinion. Waiver has been recognized not only where a complaint may have been filed outside the time period provided by the Rules, but also in situations where the amended complaint was filed beyond the date permitted in a court's order after ruling on the defendant's preliminary objections. In Zook v. Watterson. 31 D. & C. 3d 77 (1982), the plaintiff failed to file the amended complaint until 270 days after the 20-day time period permitted by the court's order granting leave to the plaintiff to file an amended pleading. The Court noted: Once plaintiff's amended complaint was filed, defendant's only recourse was to file a preliminary objection to this amended complaint on the grounds that it was not timely filed: Advanced Building Services Co. v. F&M Shaffer Brewing Co.. SUDra. Even if defendant had done so, this court would have not stricken the amended complaint because defendant does not claim that he was in any way prejudiced by the late filing. 31 D. & D. 3d at 80 (citations omitted.) The concept of waiver for failing to timely object does not only extend to complaints and amended complaints but also to answers or supplemental answers and new matter. In Rang v. 323588 "1 Allentown Women's Center. 5 D. & C. 4th 157 (1989), the Defendant filed a supplemental new matter almost a year and a half after their original answer and new matter without permission of court or the consent of the plaintiff. Although in violation of Pennsylvania Rule of Civil Procedure 1033 the court held that the plaintiff waived the right to object to the supplemental new matter. Although filed in violation of the Pennsylvania Rules of Civil Procedure, the Court stated: Obviously, defendant should have sought court approval in amending their new matter. However, it would appear that the burden is upon the opposing party to bring this error properly before the court. Since Plaintiff did not raise an objection until the summary judgement motion, we are required to, and in view of Advance. find the plaintiff waived any objection to defendant's supplemental new matter. 5 D. & C. 4th at 160 (footnote omitted.) Plaintiff has not taken a Default Judgement against the Defendant, and the Defendant still has the opportunity to file an Answer to Plaintiff's Amended Complaint. Plaintiff has already voluntarily supplied documentation to Defendant's prior counsel supporting the claims contained in Plaintiff's Complaint and voluntarily withdrew the Notice of Lis Pendens which was filed with the original Complaint. Plaintiff maintains that Defendant should be ordered to file an Answer to Plaintiff's Amended Complaint so that this case can finally move forward to a decision on the merits or suffer a default judgment. ichael . Kosik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 323588 . CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of MEMORANDUM OF LAW hand-delivered to the following: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, P A 17257 '17'hduJt7n,~' Michelle M. Milojevich DATED: 4/6/06 323588 "1'. [,1.- :, ." .-~'''"'L_ €, \, ~~~~iYEg MAR 24 2o~3 'Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff vs. : CIVIL ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY, INC., Defendant DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO STRIKE AMENDED COMPLAINT AND MOTION TO STRIKE NOTICE OF ENTRY OF DEFAULT JUDGMENT I. Facts and Procedural Historv Defendapt Lakeside Holding Company, Inc. filed timely preliminary objections to Plaintiff Gloria Nickey's complaint on July 6, 2001. A copy of the preliminary objections was mailed to plaintiff's attorney on July 10,2001. Plaintiff subsequently filed her amended cornplaintAugust 13,2001. The amended complaint was filed more than twenty (20) days after service of the preliminary objections, and plaintiff never petitioned for leave of Court to file her amended complaint. Plaintiff has twice since the filing of the amended complaint filed a notice of intention to enter default judgment for Defendant's failure to plead to the amended complaint. After the most recent notice of intention to enter default judgment, this motion to strike amended complaint was filed, and a rule to show cause why the amended complaint should not be stricken was issued and a hearing scheduled for April 6, 2006. Plaintiff has filed an answer to the motion, and the matter is ripe for whatever evidence will be proffered at the hearing, and argument on the issue presented. ,,,' ~~ il : j~ - I '1. : ~. ~",; 6". \..... II. Anrument It is expected that Robert O'Brien, original counsel for Defendant, will say, either by affidavit or testimony that he mailed the preliminary objections to Plaintiff's original counsel, Joseph L. Hitchings, on July 10, 2001, just as his transmittal letter shows. See Exhibit "A" to Defendant's motion. Plaintiff makes much of the fact that Defendant's certificate of service, attached to the preliminary objections, recited a date of July 6, 2001, for the date of mailing and service. It is apparent that, using either date, the preliminary objections were served on Plaintiff's counsel at least thirty (30) days before the amended complaint was filed. Rule 1028(c)(I),Pa.R.C.P., says that a party has twenty (20) days after service of preliminary objections to file an amended complaint as of course. If the time goes over twenty (20) days, then leave of Court must be obtained. In this case, it is clear that since the time went over twenty (20) days, the only way in which an amended cornplaint could be legally filed was with leave of Court. Without a legally filed amended complaint, there can be no legally filed notice of intention to take default judgment based upon that amended complaint. In this Commonwealth, nnless an amendment of pleading is allowed as of course as in Rule 1 028( c )(1), or of right, then the allowance of an amendment is completely subject to the discretion of the trial court. Koresko v. Farlev. 844 A.2d 607. (Cmwlth 2004) appeal denied 857 A.2d 607, cert. den. 125 S.Ct. 967 (2005). This means that leave of Court could either be denied or granted, after an appropriate motion to amend is filed, which motion usually contains a copy of the proposed amended complaint for 2 .'" lJI ~~~'~ ~'""'-~' " consideration by the Court. Plaintiff should not be permitted to escape this requirement in this case. In Plaintiff's answer to the motion to strike, it is suggested that maybe her attorney and Defendant's attorney had an agreement to extend the time for filing the amended complaint. If this is so, Plaintiff should produce a copy of said agreement because, under the provisions of Rule 201, Pa.R.C.P., to be enforceable, such an agree~ent would have to be in writing. In Harris v. Greenberg, 17 Pa. D & C 2d 166 (1959), it was held that the Court will refuse to recognize a verbal agreement between counsel providingfor an extension of time in which to file a pleading, since Rule 201 requires all agreements of attorneys relating to court business to be in writing, nnless made at the bar and noted in the prothonotary's office or upon the notes of the court stenographer. Plaintiff asserts that she cannot admit or deny whether there was any agreement between her former counsel and Attorney O'Brien to extend the time for filing the amended complaint. We believe that she did not even attempt to discover the existence or non-existence of such an agreement. It would have been a simple matter for her, or for her attorney, to pick up the phone and call her former attorney and ask him about any agreement. While she was on the phone with him, she might have inquired as well as to the date when he received a copy of the preliminary objections. We assert the preliminary objections were served by letter dated July 10, 2001. We submit Plaintiff cannot sit idly by and not make any inquiry as to whether this assertion is correct or not correct. We further submit that her inability to admit or deny Defendant's averments in this motion reflects an understanding that the provisions of 3 ;,1, " 1:1 , , . Rule 1028(c)(1) were indeed violated and the amended complaint should really be stricken. For all of the reasons herein stated and argued, the Court should decide the matter by an Order striking Plaintiff's amended complaint. tfully SUbmiDJ ~ Sally J. ~ der Attorney r defendant, Lakeside Holding Company, Inc. 9974 Molly Pitcher Highway Shippensburg, P A 17257 Telephone (717) 532-0000 4 , ""~"'_"Iil.,,,.,,,,,,- i!' ,~ ~ '^ ';~<"'-' ',"1 ,'- ~ - >" ~ -^ :i i 1 R!'7CEIVED M~~ H ~~J - Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff vs. : CIVIL ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY, INC., Defendant DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO STRIKE AMENDED COMPLAINT AND MOTION TO STRIKE NOTICE OF ENTRY OF DEFAULT JUDGMENT I. Facts and Procedural Historv Defendant Lakeside Holding Company, Inc. filed timely preliminary objections to Plaintiff Gloria Nickey's complaint on July 6, 2001. A copy of the preliminary objections was mailed to plaintiff's attorney on July 10, 2001. Plaintiff subsequently filed her amended complaint August 13, 2001. The amended complaint was filed more than twenty (20) days after service of the preliminary objections, and plaintiff never petitioned for leave of Court to file her amended complaint. Plaintiff has twice since the filing of the amended complaint filed a notice of intention to enter default judgment for Defendant's failure to plead to the amended complaint. After the most recent notice of intention to enter default judgment, this motion to strike amended complaint was filed, and a rule to show cause why the amended complaint should not be stricken was issued and a hearing scheduled for April 6, 2006. Plaintiff has filed an answer to the motion, and the matter is ripe for whatever evidence will be proffered at the hearing, and argument on the issue presented. ,,< [,,\l_ , "";, ~, ~" ' II. Anmment It is expected that Robert O'Brien, original counsel for Defendant, will say, either by affidavit or testimony that he mailed the preliminary objections to Plaintiff's original counsel, Joseph L. Hitchings, on July 10, 2001, just as his transmittal letter shows. See Exhibit "A" to Defendant's motion. Plaintiff makes much of the fact that Defendant's ~rtificate of service, attached to the preliminary objections, recited a date of July 6, 20@1, for the date of mailing and service. It is apparent that, using either date, the preliminary objections were served on Plaintiff's counsel at least thirty (30) days before the amended complaint was filed. Rule 1028(c)(1), Pa.R.C.P., says that a party has twenty (20) days after service of preliminary objections to file an amended complaint as of course. If the time goes over twenty (20) days, then leave of Com mnst be obtained. In this case, it is clear that since the time went over twenty (20) days, the only way in which an amended complaint could be legally filed was with leave of Court. Without a legally filed amended complaint, there can be no legally filed notice of intention to take default judgment based upon that amended complaint. In this Commonwealth, nnless an amendment of pleading is allowed as of course as in Rule 1 028( c )(1), or of right, then the allowance of an amendment is completely subject to the discretion of the trial court. Koresko v. Farlev, 844 A.2d 607, (Cmwlth 2004) appeal denied 857 A.2d 607, cert. den. 125 S.Ct. 967 (2005). This means that leave of Court could either be denied or granted, after an appropriate motion to amend is filed, which motion usually contains a copy of the proposed amended complaint for 2 .. WL... ~ ~-, ~,~ "-"l l~f . consideration by the Court. Plaintiff should not be permitted to escape this requirement in this case. In Plaintiff's answer to the motion to strike, it is suggested that maybe her attorney and Defendant's attorney had an agreement to extend the time for filing the amended complaint. If this is so, Plaintiff should produce a copy of said agreement because, under the provisions of Rule 201, Pa.R.C.P., to be enforceable, such an agreement would have to be in writing. In Harris v. Greenberg, 17 Pa D & C 2d 166 (1959), it ~as held that the Court will refuse to recognize a verbal agreement between counsel providing for an extension of time in which to file a pleading, since Rule 201 requires all agreements of attorneys relating to court business to be in writing, nnless made at the bar and noted in the prothonotary's office or upon the notes of the court stenographer. Plaintiff asserts that she cannot admit or deny whether there was any agreement between her former counsel and Attorney O'Brien to extend the time for filing the amended complaint. We belie~e that she did not even attempt to discover the existence or non-existence of such an agreement. It would have been a simple matter for her, or for her attorney, to pick up the phone and call her former attorney and ask him about any agreement. While she was on the phone with him, she might have inquired as well as to the date when he received a copy of the preliminary objections. We assert the preliminary objections were served by letter dated July 10, 2001. We submit Plaintiff cannot sit idly by and not make any inquiry as to whether this assertion is correct or not correct. We further submit that her inability to admit or deny Defendant's averments in this motion reflects an understanding that the provisions of 3 .'-" ";z;, . . Rule 1 028( c)(1) were indeed violated and the amended complaint should really be stricken. For all of the reasons herein stated and argued, the Court should decide the matter by an Order striking Plaintiffs amended complaint. ctfully iubmitted.l cJ ~ inder Attorne or defendant, Lakeside Holding Company, Inc. 9974 Molly Pitcher Highway Shippensburg, P A 17257 Telephone (717) 532-0000 4 ~~ , " ._ .1,-'-1 '''''~,; . . IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stacy Miller, Appellant v. No. 1930 C.D. 2004 Argued: March 3, 2005 Charles Klink, David Almond, Gregory A. Gaines, Laura Kimmel, Michael Viola, Attorney General of the Commonwealth of Pennsylvania, Commissioner of State Police, Pennsylvania State Police Barracks Commander-Embryville, and Pennsylvania State Trooper Leo Hegarty: BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge (P) HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION BY JUDGE FRIEDMAN FILED: April 1, 2005 Stacy Miller (Miller) appeals from the January 12, 2004, order of the Court of Common Pleas of Chester County (trial court), which granted Charles Klink's (Klink) preliminary objections and dismissed Miller's complaint against Klink because of improper service. We affirm. On July 1,2000, Miller was injured in Chester County as a result of being struck by fireworks. On June 28, 2002, Miller ftled a Praecipe for a Writ of Summons (Writ) against multiple defendants, including Klink. The statute of ~- ~= ."" 'bj,I",,-. . ." . n -.' ,_ ~'-" ~~, "'-"","1. limitations for Miller's personal injury action expired on July I, 2002,1 and the Chester County Sheriff received the Writ on July 2, 2002. In addition, service was unsuccessfully attempted on Klink at 3902 High Street, Philadelphia, Pennsylvania on July 16, 2002.2 The Return of Service, which was docketed on August 13, 2002, indicated that no service was made and stated, "checked at post office & Coles Directory. No such address." (R.R. at 72.) Miller subsequently filed a Complaint on October 30, 2002, and an Amended Complaint on April 7, 2003. (R.R. at 3b; see R.R. at 5b.) No additional attempts were made to serve Klink until June 27, 2003, when Miller filed a Praecipe to Reinstate the Summons and Amended Complaint, (Supp. R.R. at 7b), after Miller's current counsel3 receiyed Klink's preliminary objections to Miller's Amended Complaint. Klink's preliminary objections, which were filed pursuant to Pa. R.C.P. No. I028(a)(I), alleged improper service of process, (R.R. at 57); indeed, Klink maintained that the docket entries did not reflect that Klink ever was served.4 (R.R. at 8.) In response, Miller maintained 1 42 Pa. C.S. ~5524 sets forth a two year statute oflimitations for personal injury actions. 2 Attempted service was via appropriate deputization of the Sheriff of Philadelphia County. See Pa. RC.P. No. 400(d) (rt;:garding service by the sberiffin a county other than the county in which the action was commenced); Pa. R.C.P. No. 400.1(b) (regarding original process in Philadelphia County in an action commenced in any other county). 3 By order dated December 23, 2002, and docketed December 24,2002, the trial court granted Miller's original counsel's petition for leave to withdraw. (Supp. RR. at 4b.) 4 Klink also filed preliminary objections pursuant to Pa. RC.P. No. 1028(a)(4) (demurrer) and Pa. RC.P. No. 1028(a)(2) (failure to plead in conformity to law or rule of court). However, because the trial court based its decision only on the objection regarding improper service, these objections will not be discussed. We note, however, ~t Klink's assertion that Miller's action is time barred by the statute of limitations is incorporated into the relevant (Footnote continued on next page...) 2 ,-'~~o-oL .;.", Jill,. '"-', that she initially attempted service on Klink within thirty days of filing the Writ and that she made a good faith effort to serve Klink at the address provided to her by the Pennsylvania State Police and by Klink in his August 7, 2001, deposition in a related matter. (R.R. at 52, 53.) Miller also maintained that her current counsel was unaware of any issues regarding service until he received Klink's preliminary objections on or about June 25, 2003,5 and he sought to reinstate the Writ approximately three days later.6 (R.R. at 51,57.) After oral argument and the filing of briefs, the trial court entered an order dated January 12, 2004, graIiting Klink's preliminary objections and dismissing Miller's Amended Complaint against Klink. The trial court detennined that there was improper service of process, and consequently, the statute of (continued...) objection here. The defense of statute of limitations is to be raised as an affirmative defense by filing new matter and not as a preliminary objection. Pa. R.C.P. No. 1028(a)(4), note; Farinacci v. Beaver County Industrial Develonment Authority. sl() Pa. 589, 511 A.2d 757 (1986). However, because Miller did not object to the issue being raised in preliminary objections, this court may review it. Johnson v. Allgeier, 852 A.2d 1235 (pa. Super. 2004); see Farinacci. Additionally, as will be discusse~ the issues of service and statnte of limitations are entwined under Lamn v. Heyman. 469 Pa. 465, 366 A.2d 882 (1976). 5 The docket entries show the preliminary objections were served on Miller's counsel on June 23, 2003. (R.R. at Th.) , 6 Additionally, Miller stated she still was attempting to serve Klink. (R.R. at 51.) The docket erttries show that, on July 19, 2003, service for Klink was "served on adult in charge- refused name- left on step - 2 copies." (R.R. at 8b.) 3 ~ > ~~ "'~ --~-';';' I ~ l" ~' _ILll.. :,--, .' ' , .~ ,.,,' .~ , i , limitations did not toll. Ultirnately, Miller appealed the trial court's order to this court.7 First, Miller argues that the trial court committed an error of law or abused its discretion by failing to hold an evidentiary hearing and make factual findings as to whether Miller acted in good faith in her efforts to serve the Writ upon Klink:. We disagree. "Procedural rules relating to servIce of process must be strictly followed because jurisdiction of the person of the defendant cannot be obtained unless proper service is rnade." Beg:lin v. Stratton, 816 A.2d 370, 373 (Pa. Cmwlth.2003). Pa. R.C.P. No. 1007 provides that an action may be commenced by filing with the prothonotary a praecipe for a writ of summons or a complaint. Additionally, Pa. R.C.P. No. 401 provides: (a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint. 7 Miller originally appealed to the Superior Court; however, the Superior Court quashed the appeal because the trial court's order was not final due to the fact that there was not a final order issued with respect to some of the other defendants. (R.R. at l2b.) Subsequently, the trial court entered an order based on a stipulation for the entry of judgment with respect to the remaining defendants, thereby rendering the trial court's January 12,2004, order with respect to Klink final. Klink again appealed to the Superior Court, which transferred the matter to this court. (R.R. at 12b, l3b.) Our scope of review of a trial court's grant of preliminary objections is limited to determining whether that court committed an error of law or abused its discretion. Concerned TaxDayerS of Clearfield County v. Clearfield County. 764 A.2d 656 (pa. Cmwlth. 2000). 4 . 1;1 ~,,-> , "~ (b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule . . ., the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ ... by writing thereon "reissued".... (2) A writ may be reissued ... at any time and any number of times.... Case law also addresses service of original process. Prior to the serninal case of Lamp v. Heyman. 469 Pa. 465, 366 A.2d 882 (1976), "the rule was that an action commenced but not served within the statutory period was sufficient to toll the statute [of limitations] for an additional period equal to the length ofthe statutory period." Williams v. Southeastern Pennsvlvapia Transportation Authority, 585 A.2d 583, 584 (Pa. Cmwlth. 1991). However, recognizing the potential for abuse of this rule and finding this rule to be inconsistent with the dual policies underlying statutes of limitations (avoiding stale claims and achieving speedy and efficient justice), our supretne court, in Lamp. qualified the rule to "avoid the situation in which a plaintiff can bring an action, but, by not makinga. good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations." Id. at 478, 366 A.2d at 889. The court in Lamp ruled that, prospectiyely, "a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Id. Subsequently, our supreme court stated, "Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action." Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 594, 511 A.2d 757, 759 (1986) (discussing and quoting Lamp). Where a plaintiff does not make a good faith effort at service of original process, an action which was otherwise 5 "l->'. " . timely commenced by filing a praecipe for a writ of summons within the statutory period will be deemed untimely and barred by the statute of limitations. Lamp; Johnson v. Allgeier. 852 A.2d 1235 (Pa. Super. 2004). Here, Miller contends that she is entitled to a remand for an evidentiary hearing because, although the trial court acknowledged Lamp and the concept of good faith efforts, the trial court did not apply that case as controlling law. Rather, the trial court made statements which strongly suggest that it applied non-binding legal principles enunciated by only a plurality of the supreme court in the case of Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 , (2001).8 Miller relies on Sardo v. Smith, 851 A.2d 168 (pa. Super. 2004), contendin'g that, in that case, the superior court remanded the matter for an evidentiary hearing, where, despite the trial court indicating it did not believe the appellants/plaintiffs acted in good faith, the superior court was concerned by the trial court's reference to Witherspoon. 8 In Witherspoon. our supreme court "granted allowance of appeal to consider the extent of the inquiry to be made regarding a plaintiff's efforts to serve process for purposes of determining whether the filing of a writ of sunnnons tolled the limitation period for commencing an action." Withersooon. 564 Pa. at 389-90, 768 A.2d at 1079. The lead opinion in Witherspoon, which was a plurality decision by only two justices, said that where commencement of an action and service of original process "straddle" the statute of limitations, the writ must be served within the thirty days allowed by the Pennsylvania Rules of Civil Procedure, and if service cannot be made, the process must be "immediately and continually reissued until service is made." Id. at 397-98,768 A.2d at 1084. However, this "immediately and continually" standard was rejected by the remaining five justices. In the present case, the trial court used language similar to that in Withersvoon and stated that because the Writ was not served within thirty days, the Writ expired and was no longer "live." Miller contends that this language raises a significant question as to whether the trial court properly applied the controlling law in ~ or relied, instead, on Witherspoon. 6 ~~. .- ". ,. ..I",J' , '~ .,- "iJiir- However, in Sardo, the superior court concluded that the trial court erred because its "order .. . relied exclusively on the analysis set forth in Witherspoon in striking [a]ppellants' complaint." Sardo, 851 A.2d at 170 (emphasis added). In the present case, the trial court did not even cite to Witherspoon. Indeed, here, the trial court cited Lamp and discussed the concept of good faith in concluding that Miller's single atternpt to serve Klink did not constitute a good faith effort. Because we perceive no error or abuse of discretion in this regard, Miller's first argument must fail.9 Next, Miller argues that the trial court committed an error of law or abused its discretion by failing to find that Miller acted in good faith in her efforts to serve the Writ upon Klink. Miller contends that service of process began immediately after she filed the Writ, and, when the Return of Service indicated no such address, her then counsel confirmed the address with the Pennsylvania State Police and checked it against Klink's August 7, 2001, deposition transcript. 9 Additionally, we note that Miller does not indicate what evidence of good faith she would offer in an evidentiary hearing. She does not dispute that, after the unsuccessful attempt at service on July 16, 2002, she made no additional attempts at service until she sought to reinstate the Writ in late June 2003. Moreover, even acknowledging that the trial court's opinion contains language similar to that used by the plurality in WithersDoon, and even assuming those statements were error, Miller still is not entitled to an evidentiary hearing because it is so. clear that Miller did not make a good faith effort to serve the Writ. See Parr v. Roman 822 A.2d 78, 81 (pa. Super. 2003) (stating that the only proposition for which Withersooon stands is that where the circumstances are such that "it is so clear tlul,t a plaintiff did not exercise good faith to see that a writ was served ..., there is no need to hold a hearing, and judgment on the pleadings is appropriate.") 7 " 'i"-~ , ,1.'1 - . 'b" ." ~-,~, ~ "'~;,i Additionally, Miller points out that she acted immediately to reinstate the Writ and serve it after learning of Klink's objection to service.lO According to Miller, her actions constitute good faith. We cannot agree. The plaintiff bears the burden to establish that he or she rnade a good faith effort to serve the original process on the defendant. Farinacci; McCreesh Y. City of Philadelphia. 839 A.2d 1206 (pa. Crnwlth. 2003), awealgranted. 578 Pa. 192, 850 A.2d 629 (2004). Whether a plaintiff has rnade a good-faith effort to serve the defendant is determined by the trial court using its sound discretion on a case-by-case basis. Farinacci; McCreesh. A plaintiff need not intentionally delay notifying a defendant of a lawsuit in order for a court to fmd a lack of good faith; rather, simple neglect or mistake can support such a fmding. Nagy v. Upper Y oqer Township, 652 A.2d 428 (Pa. Cmwlth. 1994); see Farinacci. While it appears that Miller did not intentionally delay service of process on Klink, it also is clear that Miller neglected to keep the legal machinery in motion with respect to notifying Klink of the commencement of an action against hirn. In fact, the docket entries reflect that there was only one attempt at service in the nearly one-year period between July 2002 and June 2003, despite Miller being informed on or about August 13, 2002, that Klink had not been served.ll Indeed, Miller acknowledges that after July 16, 2002, she made no 10 Apparently, after her current counsel checked the criminal dockets, he leamed that Klink's actual address was 3902 I Street in Philadelphia, not 3902 High Street in Philadelphia. II The Return of Service was docketed on August 13, 2002. (Supp. R.R. at 2b.) Miller's then counsel presumably was notified about that same time that no service had been made. (R.R. at 72a.) See Pa. R.C.P. No. 405(a) and (e) (stating that, if service has not been made and the writ (Footnote continued on next page...) 8 ,.<,.--~' ", , ........... '-l " " IiI .-_li-s"" additional attempts to serve the Writ until the end of June 2003, when her current counsel became aware that there was a problern with service. Given these circumstances, we cannot agree that, under Lamp, the trial court erred or abused its discretion in concluding that Miller demonstrated a lack of good faith in her efforts to serve Klink. See also Farinacci (upholding finding of lack of good faith where the delay was attributable to counsel misplacing the file and counsel's faulty memory); Nagy. Accordingly, Miller's action against Klink, which was otherwise timely commenced by filing a Praecipe for a Writ of Summons within the statutory period, is barred by the statute of limitations, ~ Lamp; Johnson, and the trial eourt properly sustained Klink's preliminary objections and dismissed Miller's Amended Complaint as to Klink. Nevertheless, Miller argues that the trial court should have oyerlooked any defects with regard to service of the Writ because there was no evidence that Klink would suffer any prejudice. However, "[ w ]hether a court may disregard a litigant's defective service of process or violation of its order is vested within the sound discretion of that court." Konya v. District Attorney of Northampton County, 543 Pa. 32, 35, 669 A.2d 890, 892 (1995). We will not overturn a trial court's rigid application of procedural rules unless the trial court abused its discretion. Id. Moreover, a lack of prejudice to a defendant need not excuse a (continued... ) has not been reissued, upon the expiration of the period allowed for the service, a return of no service shall be made and that return of no service shall be filed with the prothonotary); Pa. R.C.P. No. 405(g) (stating that, upon filing a return of no service, the sheriff shall notify, by ordinary mail, the party requesting service that service was not made). 9 '" - '". - J'" "~~L 'J"'_ , "-:;,; plaintiff's failure to comply with procedural rules regarding service. Teamann v. Zafris, 811 A.2d 52 (Pa. Cmwlth. 2002) (holding that the plaintiff failed to make a good faith effort to serve the complaint and that a lack of prejudice to a defendant does not excuse a plaintiff's failure), appeal denied sub lliID1. Baker v. Zafris, 574 Pa. 761, 831 A.2d 600 (2003). Thus, even assuming, as Miller argues, that Klink: would not suffer any prejudice if the trial court were to overlook the defect regarding service, we cannot agree that the trial court erred or abused its discretion by failing to do so giv~n Miller's lack of good faith in serving the Writ and the strict construction appli~able to rules relating to service of process. Accordingly, we affirm. ROCHELLE S. FRIEDMAN, Judge 10 , .- ' ~ [__,1'_ , . ......Joi~~fu~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stacy Miller, Appellant v. No. 1930 C.D. 2004 Charles Klink, David Almond, Gregory A. Gaines, Laura Kimmel, Michael Viola, Attorney General of the Commonwealth of Pennsylvania, Commissioner of State Police, Pennsylvania State Police Barracks Commander-Embryville, and Pennsylvania State Trooper Leo Hegarty : ORDER AND NOW, this 1st day of April, 2005, the order of the Court of Common Pleas of Chester County, dated January 12,2004, is hereby affirmed. ROCHELLE S. FRIEDMAN, Judge , ANGINO & ROYNER, P.C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E~mail: mkosik@angino~rovner.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. GLORIA NICKEY, Plaintiff vs. NO. 2001-3563 LAKESIDE HOLDING, INC. Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE AMENDED COMPLAINT AND NOW, comes, Plaintiff Gloria Nickey, by and through her attorneys Angino & Rovner and answers Defendant's Motion as follows: 1. Admitted. 2. It is admitted that Defendant Lakeside Holding, Inc. filed Preliminary Objections to Plaintiff's Complaint on July 6, 2001. It is further admitted that a copy of the transmittal letter showing a copy of the Preliminary Objections and Motion to Strike Lis Pendens were sent to the Plaintiff's Counsel on July 10,2001 and was attached as Exhibit A to the Motion. It should be noted that the Certificate of Service to the Preliminary Objections indicates that service was being made via first-class US mail on July 6, 2001, which conflicts with the date on the transmittal letter attached as Exhibit A. Plaintiff Gloria Nickey is not certain as to the date that the Preliminary 320123 Objections were served on her prior counsel and, therefore, is not in a position to admit or deny this allegation, and strict proof thereof is demanded. 3. Plaintiff Gloria Nickey is not in a position to admit or deny whether an agreement was entered into by Defendant's prior counsel, Robert L. O'Brien and Plaintiff's prior counsel, Joseph L. Hitchings, and therefore Plaintiff is not in a position to admit or deny whether an extension was entered into extending the time in which Plaintiff would have been entitled to file an amended pleading to the Preliminary objections pursuant to Pa.R.C.P. 10238(c)(1). Strict proof of this allegation is required. 4. It is admitted that Plaintiff filed an Amended Complaint on August 13,2001 and that no Petition for Leave of Court was filed requesting permission to file the Amended Complaint. 5. Plaintiff Gloria Nickey is not in a position to admit or deny that the Amended Complaint was filed more than 20 days after the date Defendant's Preliminary Objections were served on her prior counsel. As stated in paragraph (2) above, Plaintiff is not aware of the date that the Preliminary Objections were served. The date of mailing on the Certificate of Service on the Preliminary Objections and the transmittal letter conflict and Plaintiff is not certain as to which date the Preliminary Objections were actually served on her prior counsel. 6. Denied. It is specifically denied that Plaintiff's Amended Complaint was filed in violation of the provisions of Pennsylvania Rule of Civil Procedure 1028(c)(I). As previously stated, Plaintiff is not aware of the date that the Preliminary Objections were served, and the Certificate of Service on the Preliminary Objections and the transmittal letter conflict and Plaintiff is not certain as to which date the Preliminary Objections were served on her prior counsel. Defendant's counsel has not attached an Affidavit of Attorney Robert O'Brien confirming the date of mailing of the Preliminary Objections nor has any indication been given by Plaintiff's prior 320123 counsel Joseph L. Hitchings as to the date that the Preliminary Objections were received. Additionally, after the filing of the Plaintiff's Amended Complaint on August 13, 2001, Defendant took no action either filing a Brief in Support of its original Preliminary Objections or moving to file additional Preliminary Objections or an Answer to Plaintiff's Amended Complaint or the within Motion to Strike for approximately four and one half years. Plaintiff's current counsel previously filed a Notice of Default Judgement on the Defendant, and Defendant's prior counsel Attorney Robert O'Brien filed a Motion to Strike Notice of Default. That matter is currently pending before the Court, having been continued at Defendant's request. Plaintiff maintains that Defendant's Motion to Strike the Notice of Default should be addressed prior to or at the same time as the within Motion. Further, Defendant's failure to move forward on its Preliminary Objections for over four and a half years should be deemed as abandonment of any objection to Plaintiff original Complaint or any objection to Plaintiff's Amended Complaint for failure to take any action for this period of time. 7. Denied. It is specifically denied that Plaintiff's Amended Complaint should be stricken. Defendant has taken no action on its Preliminary Objections nor has it sought to seek to strike Plaintiff's Amended Complaint for over four and a half years. Defendant had the burden of moving forward on the Preliminary Objections as well as seeking a Motion to Strike the Amended Complaint and have not done so and should be deemed to have abandoned any objection to Plaintiff's Amended Complaint which should be permitted to proceed forward. WHEREFORE, Plaintiff Gloria Nickey respectfully requests this court to deny Defendant's Lakeside Holding Company's Motion to Strike the Amended Complaint and permit Plaintiff's to 320123 .1 -n proceed with entering a Default Judgment against the Defendant for failure to respond to the Plaintiff's Complaint. lchael . Kosik LD. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 320123 ~ '-- , .. CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.c., hereby certify that a true and correct copy of PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE AMENDED COMPLAINT was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: VIA CERTIFIED MAIL: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, P A 17257 , Illy} d4?7J 7J<<tp'- Michelle M. Milojevich DATED: 2/21/06 320123 ~_~~<l1_;.;;j;'M!i'~lJ"~)J;i~~'"'" -,~J,,,,.,_<,"~,,,,,,,,, ,~ ..... ~.. ~_,I~~, ". " ~--",~ .~~~',~, - ",- '-~-" . yf~ ~'1:l'i~~ ,~ ,,-, ., r-" '= ~. c...::J: ' -;. 'l:" C~ -Cj r)"; :. "-rJ -; "" r.; :t"7; :--- <N n1_..,;- .. 1'0 r- ~_::;-- 1'0 l~ .'- .. ,a.( - " ~-,~' ,- .. -,,'.- " .,". r:? :+2 ~ U1 ..... :5 G; ...;: ~ . I. ,'Od _+~' ,_ . ANGINO & ROVNER, P.C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrishurg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for P1aintift\s) E~mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs. NO. 2001-3563 LAKESIDE HOLDING, INC. Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE NOTICE OF DEFAULT 1. Admitted. 2. Admitted. 3. It is admitted that on July 10, 2001, Defendant Lakeside Holding, Inc. filed Preliminary Objections and New Matter to Plaintiff's original Complaint. Defendant filed no Brief in Support of the Preliminary Objections. Plaintiff is unaware of the date of service of the Preliminary Objection on her counsel. It is admitted that Plaintiff filed the Amended Complaint on August 13,2001 removing paragraph 17 which Plaintiff believed to be the subject of Defendant's Preliminary Objections. After the fIling of Plaintiff's Amended Complaint on August 13, 2001, Defendants took no action either in filing a Brief in Support of their original Preliminary Objections or moving to file additional preliminary objections or an Answer to Plaintiff's Amended Complaint. In light of Defendant's failure to take any action, Plaintiff's new counsel filed a Notice of Intent to Take a Default Judgement in order to get defense counsel to move forwarded with this action. 297511 ',-,.",,', , . . 4. Admitted. It is denied that Plaintiff's Amended Complaint was in response to a Rule to Show Cause issued by the Court on August 14,2001 since such Rule was not issued until a day following the filing of Plaintiff's Amended Complaint. The Rule directed Plaintiff to show cause why the Lis Pendens filed with the original Complaint should not be removed. Within 30 days of the Rule, Plaintiffs counsel filed a Praecipe to Strike the Lis Pendens on September 11, 2001 rendering the Rule moot as well as mooting Defendant's original Prelinrinary Objections. It is admitted that subsequent to September, 2001, there was no activity by any party until Plaintiff's filing of a Notice of Default on March 16, 2005. Defendants have taken no action to resolve their original Preliminary Objections or to me additional Preliminary Objections or to answer Plaintiff's Amended Complaint and therefore Plaintiff believes that a Notice of Intent to take Default was properly filed of record in order to get Defendant to take some action in response to the Amended Complaint. WHEREFORE, Plaintiff Gloria Nickey respectfully requests this court to dismiss Defendant's Motion to Strike the Notice of Default and require Defendant to Answer Plaintiff's Amended Complaint within 10 days so that the pleadings can be closed and discovery can be completed to decide the case on the merits. chael E. osik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 297511 . CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE NOTICE OF DEFAULT was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: VIA CERTIFIED MAlL: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, P A 17257 mih~?n7Ju!r Michelle M. Milojevic DATED: 2/21/06 297511 ,;;I' ;tJl~-~"~'.; '~~;M~-'-""N1J:ilit'-~1::flt~'iW,,~j"!il!l_~Mlll'Ji,ii1"'~lli" ....1/" ~""., ," .-4 N~~ " ~ ~'''1i1ll ""' &~ < 0 N> ,-~ 0:;;::::, 'J C = -n :-:-: C,.... , , '"T1 ~ '" rr; nl -n -" 0:' F ,-- , -iJ rn ", N :n l.7 " N :~3 ~ ~~\ ,~ '"r"' , '.~- -0 i:::..'J -7 , G -">-, "~,:~~' -". ~~ C-) P-t ,,' N :;;-l U1 :'.0 ..,( U'l -< " GLORIA NICKEY, Plaintiff vs. LAKESIDE HOLDING COMPANY, INC., Defendant .. ,. "..,- . .'~--,-~"' '-."~,-" - < '-v:,;__ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 01-3563 CIVIL IN RE: MOTION TO STRIKE THE NOTICE OF DEFAULT JUDGMENT ORDER AND NOW, this q r day of March, 2006, argument on the within motion to strike notice of default judgment is set for Thursday, April 6, 2006, at 1 :30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. ~chael Kosik, Esquire For the Plaintiff ,.$ally J. Winder, Esquire For the Defendant :rlm BY THE COURT, Ad ~ ! i I t '"~~_._, 1~ Or ~ ~.~r;:,-' -9 ',If\\1;, \\l-,i\ Lt,}.;'" C~).J,i:- _w~,~_ ,~'-.- . - .-- n" . -~_ \ . \,',;::,,', , d, ~ ~ I ~: ' , . lilll~Q~__ ~ ~~, - "~, ,-" ",-, '1"''7"_ ~~: J1'" ',.,_"_Jr",~~~,,.." ^,';' , -, .' '':"'''_1'''~ " IH , J ,- j~0 SHERIFF'S RETURN - REGULAR CASE NO: 2001-03563 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NICKEY GLORIA VS LAKESIDE HOLDING INC BRI,AN BARRICK , Sheriff or Deputy Sheriff of Cumberland county,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LAKESIDE HOLDING INC the DEFENDANT , at 0016:45 HOURS, on the 14th day of June , 2001 at ONEBEISTLE PLAZA SHIPPEN'SBURG, PA 172 5 7 by handing to TOM REED (SUPERVISOR) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 13.02 .00 10.00 .00 41.02 SO?~~e R. Thomas Kline 06/15/2001 SAIDI S, SHUFF, Sworn and Subscribed to before By: me this .t? <t::- day of ~ :timl _ A.D. ~9--(l~r~ rothonotary SAlOIS SHUFF, FLOWER & LINDSAY ATIORNEYSIATlLAW 26 W. High Street Carlisle. P A \, ~ .1 ,,,,j ~ - "Ll ,.';.,,'", --' --'<--,--.' ,.,"x;, '.' .'. ...........'.....'.. .- '--,' '~i', '-ii: ,. z - '_~I"'" . GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.: 01- 35td LAKESIDE HOLDING, INC., Civil Action - Law Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint 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 HA VB 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 SAIDIS, SHUFF, FLOWER & LINDSAY Dated: /;-1''0\ "..-~,,~..""- oseph L. ltC' 9s~__squire Supreme Court I.D. # 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff II ,"- SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYS.AT-LAW 26 W. High SITeet Carlisle. PA -~~ " . GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.: 0 I - .3 5'-3 ~J. ry..e-v- LAKESIDE HOLDING, INC., Civil Action - Law Defendant COMPLAINT AND NOW, this d-tl- d f ,]", ay 0 , 2001, ..-r' , \ '- ll\.... comes the Plaintiff, Gloria Nickey, by and through her undersigned attorneys, Saidis, Shuff, Flower & Lindsay and avers in support of her Complaint against Defendant as follows: 1. Plaintiff, Gloria Nickey, is an adult individual residing at 2107 Lindsay Lot Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant, Lakeside Holding, Inc., is a foreign corporation doing business in the Commonwealth of Pennsylvania with an address of One Beistle Plaza, Shippensburg, Cumberland County, Pennsylvania 17257. 3. At all times material hereto, Defendant owned the real property and business known as "The King's Inn and Nickey's Lounge" located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania, 17257. II SAIDIS SHUFF, FLOWER & LINDSAY ATI'ORNBYS.Ar-UW 26 W, High Street Carlisle, PA " " MI ,l~ ,- ,- 0-<'-. ,n,'_ .,,__,'_ ~j ~. 4. The Kings Inn and Nickey's Lounge is a hotel, restaurant and bar, housed in a building that includes 16 rentable rooms. 5. For the past 3 years Plaintiff has worked in various positions in the business 'known as "The King's Inn and Nickey's Lounge", owned by the Defendant. 6. In 1999, H. Ric Luhrs, in his capacity as President and agent of Lakeside Holding, Inc., approached the Plaintiff, to inquire as to whether she would be interested in purchasing the business known as The King's Inn and Nickey's Lounge. 7. Plaintiff advised H. Ric Luhrs that she was in fact interested in purchasing the business and in September 2000 the parties entered into negotiations for the purchase of The King's Inn and Nickey's Lounge. 8. During the period in which the parties were trying to confirm the terms of the sale, H. Ric Luhrs, on behalf of the Defendant, made oral promises to the Plaintiff that he would in fact sell the property and business to her. 9. Although an Agreement of Sale was drafted and revised on several occasions, the Agreement was never fully executed by the parties. 10. Plaintiff, in reliance upon the oral promises of H. Ric Luhrs, as agent for the Defendant, contributed over 2 iI , . SAIDIS SHUFF, FLOWER & UNDSAY ATrORNEYS.AT.LAW 26 W. High Street Carlisle, PA ,". , 'b ,_ ,.'1,'-'= ~,' '. ''''''_ ' _~>''''"',"~',~ ,1, ""_ . "'-" -'-':~j, $60,000.00 of her own funds to the business, to pay operating costs and expenses of the business including but not limited to, payroll, utilities, building repairs, and the purchase of alcohol and food products. 11. From 1999 through the present, Plaintiff loaned I' various pieces of kitchen equipment for use by the restaurant, including among other things: Ii a) ACres-Core steamer; b) Two pressure fryers; c) Two tables; d) An imperial grill; and e) A flat two-foot grill. 12. The value of the equipment provided to the business by the Plaintiff exceeds $7,000.00. 13. Plaintiff has never been reimbursed for any of her financial contributions to the business, nor has she been reimbursed or paid for the equipment which she loaned to the business and which the business continues to use. 14. It has recently come to Plaintiff's attention that H. Ric Luhrs, on behalf of Lakeside Holding, Inc., plans to sell the business known as The King's Inn and Nickey's Lounge to a party other than the Plaintiff. 3 II , ~ ~ . . SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYSeAT-LAW 26 W. High Street Carlisle, PA ,-, ,,-I ,-l'_ '-e'",-',,': -.0,; "_~_ i _',- " "~"~I 15. It is believed and therefore averred that said sale will include various items of equipment belonging to the Plaintiff and which remain in the business. 16. Defendant will be unjustly enriched if it is permitted to keep the financial contributions and kitchen equipment from the Plaintiff without reimbursing or returning said items to the Plaintiff. 17. As this action affects interest in the subject property and business, this action must be indexed as a lis pendens against the property. WHEREFORE, Plaintiff, Gloria J. Nickey, respectfully demands judgment against Defendant, Lakeside Holding, Inc. in an amount in excess of $25,000.00, plus interest, costs and other damages as proven at trial. Respectfully submitted, SAlOIS, SHUFF, FLOWER & LINDSAY Dated: (-U~<Jl ~ J seph L. Hitchtn s, Esq re ttorney 1.0. # 65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff 4 II .' SAlOIS SHUFF, FLOWER & UNDSAY AITORNEVS.AT.LAW 26 W. High Street Carlisle, PA ._ ,,__,n--. ',:;;c-,,,;,,.,' ",-,-",',," '....~-, VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subj ect to the penal ties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. DATED~ X tx.(/)(')( Ii ~~'"..&. ""-~''''~j~~Uf~M~$i~",,ri,h,,,;;,,*%.hilh~O';it'i&W~Ml\i;,~~.s;Ill~lf/.~'''' ~, "fIlk.ilIIl ~ ......... "- ~ .... .llJ ~ ~II !,),MIILIL ..I!Ll!!jl\llr~L!ULL. IW),J., U~.!}L, ..)II!!I!.)..!.... ,., . C, . ~ ~ ~ ~ t ,",~~' ,,,",,"1;' <?"'", 4:::. fJ\( ~ -...." ~ ~ i--. "'~ -<" ,cr," ,.. _; ":CN' ~-- I'!'; . ;S d V1~ ~9- ~ ~"1W:lill ~ ,~- ~. ..c c::> o ~;; <, -005 rrJfY'l Z:I} :zr~ UJ}:'= -<L:- r;CJ ;.::; r-~ '2.1.." ".0 ~("- "7 ~ (.-:J ~::::: :;~ "",~~~,yl'-'i,""~', ";,~, r, ' ",", ~=_ "~ ~ ~ -..:;,. ~ -- C' ~ ~- '. '. ~ I CP C) ~ !l ,-, -:--D --c:h: .n j '-~ , ' -'() ~::j (:\~ I ,~,~ ;:} ~~~ S~'" ~~ ~ w N '+;' '",^",",-" - ",,~ ,~_.; ~ ,_ _of - ,- ".ki.l,L ,',-", -'- -,:,,' -~k;',~," ,~,..{.c':od-:':""~"'~>-"__"~ -~-i'-R:-~~t GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 2001-3563 lAKESIDE HOLDING, INC. Defendant CIVil ACTION - lAW PRELIMINARY OBJECTIONS AND NOW, this ~ day of July, 2001, the Defendant, lakeside Holding, Inc., by and through its attorney, Robert l. O'Brien, Esquire and responds as follows: 1, In early June, 2001, the Plaintiff, Gloria Nickey, filed a Complaint In the Complaint, the Plaintiff alleges that the Defendant corporation damaged the Plaintiff, 2, The aforesaid Complaint is insufficiently specific in reference to the alleged damages of $60,000.00 as to what items were paid, the dates paid, and which person or entity made a payment 3. The Complaint is insufficiently specific in identifying the period of time which terms of a sale, if any, were being discussed and the oral promises, if any, that Ii were made to the Plaintiff and the relevant time frame. 4. The Complaint is insufficiently specific in reference to the time that particular items of equipment were placed in the restaurant, as well as the value for each particular piece of equipment 5. The Complaint was not properly served upon the Defendant, and hence, ,: jurisdiction has not attached. ii - ,~- ,-. ~ .'A <,I" - ". - ,. .-',', -' - .""'~--~'~Idl<,,,:-,,;w".,,"":" -" ,j,,-,,,,b,,,,.;;';,,j';;"';-,0i-'il'_d',,*,,,,,<,,,,, -,'--;0> -:~i 6, The claim by the Plaintiff fails to conform to a rule of court in that any claim for the return of personal property must be raised by a replevin action, said claim to include the identity of the articles, their value and the location. NEW MATTER 7, The Defendant raises as new matter, the Statute of Frauds, which provides that no agreement for the sale of real estate will be enforced unless in writing and signed by the party to be charged, 8. The Defendant further alleges that the Plaintiff is to estopped from bringing any actions in reference to the real estate by failure to reach a final written agreement with the Defendant in reference to the real estate. 9, The Defendant further alleges that the Plaintiff is barred by the Doctrine of Latches and that she has not brought her claim within a timely fashion, if in fact the property was to be sold to her, 10. The Plaintiff claims that the Complaint is sufficient to give rise to a lis i' pendens involving the real estate, The Defendant avers that the allegations set forth in the Complaint are insufficient to constitute the right to a lis pendens because title to the real estate is not involved in the litigation, It appears that the Plaintiff's claim is for ,j money or for the return of property. 11, The Plaintiff's Complaint is not sufficient in that if the Plaintiff seeks return of items of equipment for which she has clear legal title and ownership, she must make II a claim for the return in a replevin action, 1 , i: ii il ,. " <-'- ,.';;,--.- ^' or,'-" -' <-, '~-, --,"-"~ -, '. "-,, , -_'_ -u.;",..;,.,..,; '. ':'iii-;1i!j '. WHEREFORE, Defendant respectfully requests that the Court dismiss the Plaintiff's Complaint. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: ~c8.,~ Robert L, O'Brien, Esquire Attorney for Defendant LD. # 28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 rl o.d i riel ie nts/lakes ide/n ickey. 0 bj I ~ c"~ ~"~ -'-_-~~'<- ..,.." ",_ -n ..'<,,",'" _'~. -'~_', _k._,-, c."',,,,.':,", ""''';_''0;''''-_ _,' ,~ I verify that the statements made in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief. This verification is signed by Robert L, O'Brien, Esquire, attorney for the Defendant and is based upon statements provided by Lakeside Holding, Inc, and other persons, as well as documents reviewed by the undersigned as attorney for Lakeside Holding, Inc,. This verification will be substituted and ratified by a verification signed by an officer of Lakeside Holding, Inc, who is presently unavailable to sign said verification. I understand that false statements herein are made subject to the penalties of 18 Pa. c,s, S 4904, relating to unsworn falsification to authorities. ~;V..J Robert L O'Brien, Esquire Dated: 7((P(ol ,', " - .~ ~. ~ ^ ~ ~u 0" ..~_'_~'"'_~ .'i-~ . GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 2001-3563 LAKESIDE HOLDING, INC, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that on July 6, 2001, I, Robert L. O'Brien, Esquire, of O'Brien, Baric & Scherer, did serve a copy of the Preliminary Objections, by first class U.S, mail, postage prepaid, to the parties listed below, as follows: Joseph L. Hitchings, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, Pennsylvania 17013 <)cD6~. Robert L. O'Brien, Esquire II SAIDIS SHUFF, FLOWER & LINDSAY A'ITORNEYS-AT-LAW 26 W. High Street Carlisle. PA , . " I",l '- ~- ',,'::! <-.- '^', " GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.: 01-3563 LAKESIDE HOLDING, INC., Civil Action - Law Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that .if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 240-6200 SAIDIS, SHUFF, FLOWER & LINDSAY Dated: <f~/j -0 I ) h L. Hitchings, preme Court I.D. # 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff re II SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS-AT.LAW 26 W. High Street Carlisle, P A ~ . , "I ~ _" , r ,-,I ~l , _ ;., ' -'" GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.: 01-3563 LAKESIDE HOLDING, INC., Civil Action - Law Defendant 11'1 Ii! AMENDED COMPLAINT AND NOW, this ) ~ i1' day of % A :r comes the Plaintiff, Gloria Nickey, by and through her , 2001, undersigned attorneys, Saidis, Shuff, Flower & Lindsay and avers in support of her Complaint against Defendant as follows: 1. Plaintiff, Gloria Nickey, is an adult individual residing at 2107 Lindsay Lot Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant, Lakeside Holding, Inc., is a foreign corporation doing business in the Commonwealth of Pennsylvania with an address of One Beistle Plaza, Shippensburg, Cumberland County, pennsylvania 17257. 3. At all times material hereto, Defendant owned the real property and business known as "The King's Inn and Nickey's Lounge" located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania, 17257. II SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, P A _lJl "., "'" ",,-- '~J -," .'-''@;j 4. The Kings Inn and Nickey's Lounge is a hotel, restaurant and bar, housed in a building that includes 16 rentable rooms. 5. For the past 3 years Plaintiff has worked in various positions in the business known as "The King's Inn and :! Nickey's Lounge", owned by the Defendant. 6. In 1999, H. Ric Luhrs, in his capacity as President and agent of Lakeside Holding, Inc., approached the Plaintiff, to inquire as to whether she would be interested in purchasing the business known as The King's Inn and Nickey's Lounge. 7. Plaintiff advised H. Ric Luhrs that she was in fact interested in purchasing the business and in September 2000 the parties entered into negotiations for the purchase of The King's Inn and Nickey's Lounge. S. During the period in which the parties were trying to confirm the terms of the sale, H. Ric Luhrs, on behalf of the Defendant, made oral promises to the plaintiff that he would in fact sell the property and business to her. 9. Although an Agreement of Sale was drafted and revised on several occasions, the Agreement was never fully executed by the parties. 10. Plaintiff, in reliance upon the oral promises of H. Ric Luhrs, as agent for the Defendant, contributed over $60,000.00 of her own funds to the business, to pay operating " SAIDIS SHUFF, FLOWER & LINDSAY AlTORNEYSIATlLAW 26 W. High Street Carlisle. PA "-." -,"Ii-l ,.:.,,', '.", -),), 1-' I , I "' '. costs and expenses of the business including but not limited to, payroll, utilities, building repairs, and the purchase of I,ll alcohol and food products. 11. From 1999 through the present, Plaintiff loaned various pieces of kitchen equipment for use by the restaurant, including among other things: a) ACres-Core steamer; b) Two pressure fryers; c) Two tables; d) An imperial grill ; and e) A flat two-foot grill . 12. The value of the equipment provided to the business by the Plaintiff exceeds $7,000.00. 13. Plaintiff has never been reimbursed for any of her financial contributions to the business, nor has she been reimbursed or paid for the equipment which she loaned to the business and which the business continues to use. 14. It has recently come to Plaintiff's attention that H. Ric Luhrs, on behalf of Lakeside Holding, Inc., plans to sell the business known as The King's Inn and Nickey's Lounge to a party other than the Plaintiff. 15. It is believed and therefore averred that said sale will include various items of equipment belonging to the plaintiff and which remain in the business. II SAIDIS SHUFF, FLOWER & LINDSAY ATIORNBYS.AT-LAW 26 W. High Street Carlisle, PA , " '"- ;,"1",_ " '", 'r , 16. Defendant will be unjustly enriched if it is permitted to keep the financial contributions and kitchen equipment from the Plaintiff without reimbursing or returning said items to the Plaintiff. WHEREFORE, Plaintiff, Gloria J. Nickey, respectfully demands judgment against Defendant, Lakeside Holding, Inc. in an amount in excess of $25,000.00, plus interest, costs and other damages as proven at trial. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Dated :")(/13 -0 / ), Jo eph L. Hitchin s, Esq Attorney I.D. # 65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff II SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYS.AT-LAW 26 W. High Street Carlisle, PA ,. VERIFICATION ~ ~ Jl "';""'""\"-+-"""-"'~i . , I verify that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. c1Ink~0eJA Gloria . Nickey ~ DATED: II SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEYS'AT'LAW 26 W. High Street Carlisle, PA . ~' ~-,' --';~"" "" , ,:;'~.- ,-, ~ ,-"'k;,, --j " . . ' , \,..~CERTIFICATE OF SERVICE " On this ~ day of j4'~61.1lD* , 200\ I hereby certify that I served a true and correct copy of the foregoing Amended Complaint upon all parties of record via United States Mail, postage prepaid, addressed as follows: Robert O'Brien, Esquire 17 West South Street Carlisle, PA 17013 SAIDIS, SHUFF, FLOWER & LINDSAY II ~r::'~"4' ';'~~;'Il~."""- ~l!iItljiiJ ri 'Ili~l:li~' ',' i(~I~i\!lj~ri1 ~-illr " :",',"",,""~-- .~, ~ ~"' "'""'" " - - _t; " 0. 0 CJ -r ~~ n !]lJo ~'h )>. ,~~n .-_1 cJ, ~~ G=) c..) . "~T (;J :~ :T( )>C":' ..r__ - , Zc (--, 1 [5 )>.l (~5.h~ '" c N 0 Z , to =<! :::> 5:1 ...) 0_1 -< 7'" ;l ~ ~\I",,,L _"'''''__''''-~'""",",,, ,,,,"" "'-E,~"$~-f_. ,1J _,'", -,,' '~__.<"r___'.- " ' ----~,,'-, ,.~,"",'-.~,- '~,~' ',,'> ~ ',,,,. ,.~- ,,-"",'''~ ".":",,."".. ,,' ~-;--"." ." ,T~0' "'" ~-, ~~"~,~ , k , O~ -, ,"I - - ,~,,~ ',,-'.--' ',,1'.1I;'~ -,' .... n,,,,,';,,-,__, ,-,,,.~-,,,",~'-~",,,,'--..:h"~_''':;'-';~'__'",,,n ~ - '-'- ":::1:1 _. . -, '", ' GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v, NO, 2001-3563 LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this f /'1 day of , 2001, upon review of the ~",J Motion to Strike a Lis Pendens, a rule is issued upon the Plaintiff/Respondent to show cause why the relief requested should not be granted. ~ rdv"'~ .<0 ~J 'YC:;- JlVIIIk. BY THE COURT :7 /ld J. , " Ii ~;.;",,,,,,,,-,,-,: .'>-. !'f ,,- l...1-JQ (J(l.: R:. ._;-:.' /ic'" _I f:r:. ~ }..~: i' \, 'P~ , Q " lii!I).~t,!.. !I!,)!I~'!!ll00!!l!.... 'rl' w.iiliii8tiillll-; ---";~ll-n ('J ....,:;. i::: <: ;;; :...):5!; Cl< ,~'\S: ;;!s:! ',i"V; --1> 3jzg ;;gO-. :J () -.. (~I ~ .:t:' "~ :':5 <.!) .:::, oq: C:l ,_ o~"""""".....' itii!~m!W"" ~:'fJ~,:! ,,~:~,_:_,<~,A,'':~o:-:D_'-''-o-_;'-i:','" A-L",. J:v~".:;"., ~~- '-''';_".. , ," ',' "',-~', ~--, ,---".,,, ',., ..,- --'''''''-'',Y,~'' _~,~ "'"', "''-,","'W','" -<__ , ,-~- ~,~ ., __fl~_~~ " - , ,.' , - "., ~,. , ,-- --,- , k-J ",". ~"" .<"-8"o",-<",~;:"l_"' -"r.-, ", '''0' <, , .-[~~ ~"'" . . ,,' '. GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 2001-3563 LAKESIDE HOLDING, INC, Defendant CIVIL ACTION - LAW MOTION TO STRIKE LIS PENDENS 1, Movant is Robert L. O'Brien, Esquire, attorney for the Defendant in the above-captioned action, 2, Respondent is Gloria Nickey, by and through her attorney, Joseph L. Hitchings, Esquire of Saidis, Shuff, Flower and Lindsay of 26 West High Street, Carlisle, Pennsylvania, 3, The Plaintiff/Respondent in the above-captioned action has filed a Complaint and the Defendant has responded to the Complaint with the filing of Preliminary Objections and New Matter. 4, The Complaint alleges that the action gives rise to the right to file a lis pendens against Defendant's real estate, located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania 17257, 5, The Complaint filed by the Plaintiff/Respondent does not allege that she has an interest or a claim in the title to the real estate and accordingly, the Complaint is insufficient to maintain a lis pendens against the real estate, WHEREFORE, Movant respectfully requests this Honorable Court order I, and direct that the lis pendens filed by the Plaintiff/Respondent be stricken. i Ii I, , II rlo. d i riel ientsllakesi de/n ic key. mot il ! By: . "-,~ ",~,-,-,,~,,--<,,--,,'"'-"''""''-~ ,--~'.,-,<<..<,,~ ''''~''''~,.--"..-~:: -~-,~ "--' ~i -J '" . Respectfully submitted, O'BRIEN, BARIC & SCHERER - t2>f)~(V-I"-- Robert L. O'Brien, Esquire Attorney for Defendant 1.0. # 28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 ~,< ~. . ~H~"' - ~~'" .. '.' -~"--~-,"~"-~'" . ~ -"~-"" 'C"'""'';;'''~I . . " " . . , > . . . VERIFICATION I verify that the statements made in the foregoing Motion are true and correct and constitute only legal issues or matters of record in the Prothonotary's Office. I understand that false statements made herein are made subject to the penalties of 18 Pa, C,SA Section 4904, relating to unsworn falsification to authorities. <C e E)..D~ Robert L, O'Brien, Esquire Attorney for Defendant Dated: 1/&/(')( I ( II I SAlOIS SHUFF, FLOWER & LINDSAY ATI'ORNEYS-AT-LAW 26 W. High Street Carlisle, PA , , GLORIA NICKEY, Plaintiff v. LAKESIDE HOLDING, INC., Defendant ",",-"i 1_" " ::. ,1,,-1,_,:, '':'''-' , _-';;,~';'_h ,;" _,~"_ I ,'--. ~,"' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 01-3563 Civil Action - Law PRAECIPE TO STRIKE LIS PENDENS TO THE PROTHONOTARY: Please strike and/or withdraw the Lis Pendens which Plaintiff had previously filed in this matter against the Defendant, Lakeside Holding, Inc., located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania 17257. i'll-o( Ii Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY By: 7. J seph L. Hitchings, Esq Attorney I.D. # 65551 26 W. High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff , SAlOIS SHUFF, FLOWER I & LINDSAY ATI'ORNEYS-AT.LAW 26 W. High Street Carlisle, PA -'- ~~;i~ CERTIFICATE OF SERVICE On this /jtt- day of )efil;~ 1Y-1 hereby certify that I served a true and correct copy of the , 20(/(, I foregoing Praecipe to Strike upon all parties of record via United States Mail, postage prepaid, addressed as follows: Robert O'Brien, Esquire 17 West South Street Carlisle, PA 17013 SAIDIS, SHUFF, FLOWER & LINDSAY By: II ...s !Iil1"''V''''O w '",,~'- ''''''ll<li~~~;&~k~.#;;~~~!ii~J..llil~~~,<",I"",-t~Hllit c_ 0 ",~~"' = -lllllilli n_,"~~,",_ ",.,""" _ =_=~"~_ w'~. ~ ,_ _ "'>"~~H"_"~___~"";'''=_'':c., ",. - .~."" - - ~~~ i; ........ ~ ~ ~ , -,~ (0 [ ....... ~ ~ ~ ~1iIIIt('- ~l t;:., o ~ ~ ~ '^ tA ~ t 1- r--- ",- ~ ~ ~ " "' ~... --~ "",' {'s ("0 () 0 f; 0 ~ (n -'11 -Om Q;Jn, 1'"'1 :':i~!l! :'S ::::. -0 zc if' '.' 1'~'1 ~"~,2 Dr.:; ~;;~ ~ .,,-G. ~~fi ~ -0 2:;;) ::Ji: ~-:,,-J w) J~'~~ ~~ -c 2: .. ,._1 -, -l !'\,) 55 -< 'D -< ,^',-,,",-' .<~ ..- ~<- -..-;",'c,..,-..,.",-,^,',~~." ,- ";~i ANGINO & ROVNER, P.C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrisburg,PA 17110-1708 (117) 238-6791 FAX (717) 238-5610 Attorneys for P1aintiffls) E..mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs. NO. 01-3563 LAKESIDE HOLDING, INC. Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Michael E. Kosik and the firm of Angino & Rovner, P.C., for Plaintiff Gloria Nickey in the above-captioned action. R,P.C. ichael E. Kosik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff DATED: 3/16/05 296421 II ~,;";J,...~. '-"'_!liM~~~~~"j~~.~~- ( ~ ",""1'9,,~,,~,~~., '_T,_'" H_~ .~,~_~_~_'".""'~,..~;h,'~_":'O_, ~ ,," _~_ :"U'7,,""__~"''''_"' ~-, ,,~ ~r~ "~-l ~ __ ~,_'~'o,,_. '. ,"_~ , ^, ^ ". ,~ .~ ~,'~ " ,-". <-' c,."~ 2::' G-~-\ ~'" -,~ po ;;0 .~, ~_~'"r,""""~_ _. iil tl ii' , , ! - _I o -n sJ,"'" rr1~':=;;; "-"ott1 -,"'\..j 'j':") .l.~ :~~;:~~ /-..,n '~21' ~,. J]. .'. -0 oW'"'" ...:-~~ .- .. - -d. . l ~ ANGINO & ROYNER, P.c. Michael E. Kosik, Esquire Attorney ID# : 36513 4503 North Front Street Harrisburg, P A 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff vs. LAKESIDE HOLDING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 01-3563 IMPORTANT NOTICE TO: Lakeside Holding, Inc. c/o Robert O'Brien, Esq. O"Brien, Baric & Scherer 17 West South St. Carlisle, Pa. 17013 DATE OF NOTICE: March 16, 2005 YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (l 0) DAYS FROM TRE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 296421 1 E. Kosik I.D. No. 36513 ""I . ANGINO & ROYNER, P.C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrisburg, P A 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs. NO. 01-3563 LAKESIDE HOLDING, INC. Defendant NOTICIA IMPORTANTE TO: Lakeside Holding, Inc. c/o Robert O'Brien, Esq. O"Brien, Baric & Scherer 17 West South St. Carlisle, Pa. 17013 DATE OF NOTICE: March 16, 2005 USTED HA NO COMPLIDO CON EL A VISO ANTERIOR PORQUE HA F AL T ADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACTUA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSBILE QUE UN F ALLO SERIA REGISTRADO CONTRA USTED SIN UNA AUDIENCIA Y USTED PODRIA PERDER SU PROPIEDAD 0 OTROS DERECHOS IMPORTANTES. USTED DEBE LLEV AR EST A NOTICIA A SU ABOGADO EN SEGUlDA. SI USTED NO TIENE ABOGADO 0 NO TIENE CON QUE P AGAR LOS SERVICIOS DE UN ABOGADO, VA Y A o LLAME A LA OFICINA ESCRIT A ABAJO PARA A VERIGUAR A DONDE USTED PUEDE OBTENER LA A YUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 296421 .. ... DATED: 3/16/05 4503 N. Front Street Harrisburg, PA 17110 Attorney for Plaintiff 296421 ,,^^,-",,'-^ ;-.>-_,"_-_,C .. ... CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of NOTICE OF DEFAULT was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: VIA CERTIFIED MAIL: Robert O'Brien, Esq. O"Brien, Baric & Scherer 17 West South St. Carlisle, Pa. 17013 ~~ 1Y).fWiv----. Michelle M. Milojevich DATED: 3/16/05 296421 i'-~,.L;';;'"".~J..'$"-~i--l'~\i._~~~'_li~ti11~~fN' 'l:iiliM~iII ~ ~/ > , ... 0 ""' c.=> 0 c: C~ .1 ;:':'P' <.n - ~ ....il,.. ):'". ".', :;:;'J I'll F'c.:::. -DC} ..... ~~~~ " ~fj2'~1 -:h~ J';-> :~jj'l 0;,,"_ --i.~~ --~ :'~:"j -< -<: r' {,'""",,"C__' GLORIA NICKEY, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 V. LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW PRAECIPE LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: 1. State matter to be argued: Preliminary Objections. 2. Identify counsel who will argue case: (a) Robert L. O'Brien, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 (b) Michael E. Kosic, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, Pennsylvania 17110-1708 3. I will notify all parties in writing within two days that this case has been listed for argument 4. Argument Court Date: May 4, 2005. ,-- ~~ Robert L. O'Brien, Esquire 6' - Date: March Z I ,2005 ~~~~~~M~':;I~l.w.M""j.'-Eilll'g,""",-':'-' ~ ~/ ~ ~ "' .>~. ~ ,. w ~~_'~>'_"~__"~"'~' _', -c' " o. ,< _, <, " , ll?r ~- -".." . ~.. g ,..., 0 = "'" -n ~ =' -00:' ::II: :C ~m J> n,:!l :(1 :;;0 r 2C~ N :;gt? (p .,> 2""" ~o 'f,.-,;, <::.~,' :::r:-ti .." ---rt ~~ 3: 05 ;<; .::- 6rn ., ~ oD -< . .~ . ""'. ,~"",,~,~, _. -,= ,~ ~. ,,^,-,J . v\ GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3563 v. LAKESIDE HOLDING, INC. Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this Z r day of 1?1a..-t.i, , 2005, upon review of the a~ru""" + -li,~....... Motion to Strike Notice Of Default Judgment, a r!'!lo is iss!'!eet l:llgeA the d <f. ~ J'if -TIJV ~ /.3..> eJ-tm S; d 9,' tf?} Ct m, iA1 tV2 . f1laiFltiffiReslgeAeleRt te SRev.. eo!ltlse ..I,y ti,e ,elief lequc"t\::d :;huuld flul be glClllled. BY THE COURT . pI! J. ~,c:P rYe;} ~; ,,_" r Ii I! Ii Ii I! " ~ I I' ii 11 ""-~--. ~ "~ FILEIMFFlCE OF THt: PROTHONOTARY za05 MAR 29 AM 8: 25 C' "iCe:,:;"", ('i'iUI':;v UHj:,,;..,.'L...-"l;"U ....10...; ,,! I ",r"\I\I~Vl\i" I" ~""'L:l, I .;:)'/ Y'~\I\ ~/_\ . .~. ,. ~--", ~=,~-' ,~.--. ,."",",'" ~~'," ,,,,,,..,,,,.' .".. ~ L$ ~,~I~Jil!l!'I~.~_,,<_. c.'- I, J~"-' . ,,~~'~.._~-" . ~-. " '-,; ,,-"'""'""". -oJ!""'"",-'; }~- _-"~~ GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3563 CIVIL ACTION - LAW v. LAKESIDE HOLDING, INC. Defendant MOTION TO STRIKE NOTICE OF DEFAULT 1, Movant is Robert L. O'Brien, Esquire, attorney for the Defendant. 2. Respondent is, Gloria Nickey, Plaintiff in the above captioned action. 3. On or about July 10, 2001, Movant mailed Preliminary Objections and New Matter to Respondent's counsel. Movant has no documentation nor recollection of extending the time for filing an amended complaint in response to the preliminary objections, beyond the 20 day rule. The amended complaint was not filed until August 13, 2001. Accordingly, the amended complaint is not properly before the Court and the Defendant is under no obligation to respond. 4. An examination of the amended complaint, in comparison to the original complaint, shows that only paragraph 17 was changed. 5. This elimination of paragraph 17 appears to be in response to a Rule issued by the Court on August 14, 2001, directing the Respondent to show cause why the lis pendens filed with the original complaint should not be removed. A Praecipe To Strike Lis Pendens was filed by the respondent on or about September 11, 2001. 11 , Subsequent to the action of September, 2001, there has been no activity in the matter until the Plaintiff filed the default notice on or about March 16, 2005. Wherefore, Movant respectfully requests that the Court issue a rule upon the Plaintiff to show cause why the default notice should not be stricken, the Amended Complaint be dismissed as untimely filed and such other relief as is just and equitable. O'BRIEN, BARIC & SCHERER By: 'F=" CJb;v . Robert L. O'Brien, Esquire Attorney for Defendant 1.0. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Ii VERIFICATION I verify that the statements made in the foregoing Motion are true and correct and constitute only legal issues or matters of record in the Prothonotary's Office. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.SA Section 4904, relating to unsworn falsification to authorities. - +2fJ6~ Robert L. O'Brien, Esquire Attorney for Defendant Dated: "2.J'2IIDS- I GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3563 v. LAKESIDE HOLDING, INC. Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that on March 22, 2005, I, Robert L. O'Brien, Esquire, of O'Brien, Baric & Scherer, did serve a copy of the Motion To Strike Notice of Default, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Michael E. Kosic, Esquire Angino and Rovner 4503 North Front Street Harrisburg, Pennsylvania 17110-1708 ~D6~ Robert L. 'O'Brien, Esquire ~.w' '.-~~-<:.L~~~i .' r=-' ~ ~,,'~, .' ~_V "_",~_> 'Oh"""~''''ili;Ii:liia~'''~"~-- ""''''X '-'- -'~,~,,^" -<- -<~ ~. ~ - i:i 'I u )j :1 II i i ~ i ! (') ...., 0 = c.:: = "Tl ...,,,. r..M ~/Ri :J::: -l ,(, , :>- ffi:n 2:"0 :;0 "F.1 Zf"'- N (J)-.;1.?: ::Dry -<....:.. So k'::' ~-r, >..-) -u -,:!J 2:0 ::IC . (') 5c: r- am ~ ~ , -.l -< f , . "~_." , ~ ~~r.~' - . ,. ,-" "".~L.': RECEIVED APR 12 2005 uf^ GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 Plaintiff V. LAKESIDE HOLDING, INC. Defendant : CIVIL ACTION - LAW ORDER And Now this 12th day of April, 2005, after review of the attached Motion, the matter scheduled for hearing on April 13, 2005, is continued generally and may be listed for argument or hearing by either party at a future date. II "," ,"-, -=..~~~ -,,,, - . " ,e "~' _. - .w ~., ~, _ ~"-"e~."- ' '.,", "'~- , , __~ . '~",'-~'-~'",-,,," ''''>>'- ""'.-~",.-, >,-"","" ".""-"~""''''"''''h''''(l1''' -,. "~...- '",c' '''-'''oW F\Lt.D-oOirJl~o\P?:{ or \'r\t. \'\4 \ 1,\)1 -" ' '~4\O'l.;4 LullS ~PR i'3 <\.1 . '_'-iJ}.,\'"l\' q""_ " " ~,\, 'i \._.Ul I'll 1 CUN;~!,~. ,~-~'-\:';~),,-,!\\jJ.\l~\f\ '[-'cr>! '1-.. :... ~ cJiJ ,..~~ ~~!i';-:~~'~~~ ,~~!!4~,_<'I"'!'~~~~~~ If t ", - - ~ < "_, ,", .,,,,'~- ,.-" -. -~.-'-',,, -" -,,"><-~"; "...-,'0'_,,'.-, ., ,,0' ";"-',i),/, GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 Plaintiff V. LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW MOTION TO CONTINUE ARGUMENT 1. Movant is Robert L. O'Brien, Esquire, attorney for the Defendant, and he has the concurrence of Mike Kosic, Esquire, attorney for the Plaintiff to continue the Argument scheduled by Defendant on the preliminary objections filed and which is , Ii 11 II II II I[ I scheduled for Argument Court on May 4, 2005. Wherefor, Movant requests that the Argument scheduled for May 4, 2005, be continued generally. Respectfully submitted, O'BRIEN, BARIC & SCHERER r ~n Robert L. O'Brien, Esquire Attorney for Defendant 1.0. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 By: - ii II l~-r;"'.~' '"'~~i'~-" ~rc.( }"-"J'l,~"", _,~~ __1 -. ~<_ __ ~ tf--- ,=~,~,~~, -~ ___.._~'r' __ ~_ "~~~~' '" ~"&. 0"," "",",_,_ ",.', ",~- "-- , .. ., -, ,~~ "- -- o c ~m ~;j ~~ ~f:; gg2 :S -< .. h' I I'.' . 11..,1.1 i!: i'~ i: II .1 II .;. " r . "" = = c.n o .. :::l _L-n m,_ 'Ut? :0 o -:0 :r: -" 0" 7(") Om --1 55 -< > " :;;0 N v :JL: ~ .;;- C.) ~_ <,'_"~ "'0_, " ,_~___ ..0 ~~~,~" "~ __. __~o ',_~ _,~, ".$I - ,,: _ ' 1 ,:--~' ,,-,,;./ , GLORIA NICKEY, V. -~~~ RECEIVED APR 12?~ Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW ORDER And Now this 12th day of April, 2005, after review of the attached Motion, the matter scheduled for Argument Court on May 4, 2005, is continued generally and may be listed for argument by either party at a future date. / ( \ !~ ~,~,~, ^ .",'- .~,.. ~,- .~ "k, ~~,' ,"- "...<,'~~-~,~ .~'" ,~,=~..~~.~.., -~'^',-..,-~ - '~rf. FilED-OFFiCE O~ TLF" -IJQOTI"Ci\\!(l',-,< RV r lilt: '\" t." ,,,",, t\.", CUf\/8;~:''-:l..,i<'j., ~.jJUN1Y FE:Nl'-.)SY'i..\/,'~,I\(i,A \ Z005 APR 13 Ai'i 10: It 4 .'L........._.'.. '..~.. .... .~ 'T~ "'''l':r ~, '.' ~C"~~~n-~'ll!l~I11~~~.k,_ J,~~~~~!fIiI~~~ }U :;'.1_'" , ' .~ ~_r','>,~_"~'" ." _ _"~_~, "~"'~'~"_ ,.,.< "__,,'_,; ~ GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 Plaintiff V. LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW MOTION TO CONTINUE ARGUMENT 1. Movant is Robert L. O'Brien, Esquire, attorney for the Defendant, and he has the concurrence of Mike Kosic, Esquire, attorney for the Plaintiff to continue the Argument scheduled by Defendant on the preliminary objections filed and which is scheduled for Argument Court on May 4, 2005. Wherefor, Movant requests that the Argument scheduled for May 4, 2005, be continued generally. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: ~MI1 A .2/_____. Robert L. O'Brien, Esquire Attorney for Defendant I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 I l' , Ii I ~" ~~Iiiloidlllliili~" .., ~--"'-"~~~~~~~lW--' r:- :..---- ~' -f -,-,j'.... "~- -. ,m~. "_" _n'.' r,.,-,;_,?",", q"^ ~__" !II .d_~. _ .~ _, _~'" ". _ "M,"' .~'-~ ...' , I: [' f: ,I, f.i ~ " r: )Ii iii 'I'i il ii 'Ii ~ ~ i ., Ii 1] I 0 ,..., = 0 c: = ." ::;;~... <.n vC,;::- "'" ~ q:~ ~.~; -0 ;;0 nl~ ZT" -om 22'iF N 66 ~C' ;::1--" Pc -0 0::1 ~c; ::t: --?-() .J.:>c I)? om ~ '-4 .;:- )"> ::D N -< r .~ ~~ ~ 7 Gloria Nickey v. ~ " 1'1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lakeside Holding, Inc. : NO. 01-3563 CIVIL TERM ORDER OF COURT AND NOW, May 9, 2005, by agreement of counsel, the above-captioned matter is continued from the May 4, 2005 Argument Court list. Counsel is directed to relist the case when ready. ~bert L. O'Brien, Esquire For the Plaintiff tflichael E. Kosic, Esquire For the Defendant Court Administrator jk By the Court, Ge -\ ~' . '-~""i_f. j . 1'Oj~~~!lli~tci;*'i\l11~iiIli$:~~a~'~if.-J'ft,.,c"",_:",-,,,,&,,.~,,,o;.',,,,,,,,,--,:,,-;,,,!;t.;b!i;,dj;;""it&i61~~~JltltiKi'tt~~ FILED'-.(\C"if'CO _ ,.ll rj...A~ OF !HE PROTfIOi1J01i"\RY 2ailHIi1Y lOAN f!: I 5 CU"'" !,Vjb~hi_f';\!.:; ('Jr.")i ,'N' 'l'V ....'.1"'[ II """,, ~ ........ ! I 1"c "-:j\"l''/L\f.~ \1' J\ "".\., I vh''ii/\ ,",,",, ~~ ~ ~'-~""""'~'- .... 'k ", -,.:" ~ -<"'~ '- ',-',-'~-:<I" n ''''~'-~"",,,q-~-_' ,.-[--j :'-,,, ,,'<<-,,_" ":'!, '~-'~',c^,,_.;,,;_t,.i';,,~ "-;';."d~i RECEIVED JUL 14 20M i GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 Plaintiff v. LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW RULE TO SHOW CAUSE AND NOW, this / ~' day of 1~ , 2005, upon consideration of the Motion To Withdraw As Counsel, a rule is issued upon Plaintiff to show cause, if any there be, why the relief requested in the Motion should not be granted. Rule returnable ;';{" days from service. BY THE COURT, /J J. I! Ii " . ., - "~ -- ~. ~ 7D cs> Fl. I "I:D\,.'-\:::':','!"jC ~- '--'I; v_ OF TLI:: (O~,,,,nTI.'I(\:' :e""! ny . r- L. t I,~" '~-': ':,.' !l\!"'i , c} zunru' Jl' Ii ! c; u '0_ v (If; i' r,c; ..~.' J..... CUi~;i[;;~ ; ~ ,~. \S~ 'f\! dJ I I II II II I! 1.'1'....'. I , , h,~ -'-..,;"'f --; ,r ,~", "~~~<1__,"" ~~ ",_"__,'~~' ~,_,"' _~ _,J'~,"'%'!'~~nW!llffi~lliW.!ffi!~!~~~$i~~ifJ!"ll~!~~rl>i , . , . .... .. -.. GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 3563 v. LAKESIDE HOLDING, INC. Defendant CIVIL ACTION - LAW MOTION TO WITHDRAW AS COUNSEL 1. Movant is Robert L. O'Brien, Esquire, counsel of record for the Defendant, lakeside Holding, Inc. 2. Subsequent to appearing for the Defendant the Defendant corporation was transferred to other individuals. 3. Pursuant to the Rules of Professional Conduct, Rule 1.7, Movant reasonably believes that he has a conflict of interest that precludes him from continuing his representation. WHEREFORE, Movant respectfully requests that he be permitted to withdraw as counsel. Respectfully submitted, O'BRIEN, BARIC & SCHERER \ ~ 1<C:CX:S~ Robert L. O'Brien, Esquire Attorney for Defendant 1.0. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 rlo.dir/litigation/lakesideholdinglwithdraw.mot ii ..~ II.~ .c - '" ,,",'-', --'",,'l'~";')_'-~"_"~;'\""'nh~.j{,~ -<'-'_"",;"("~'~~5.,"",i'.;:__'h -,,,_,, '1'~:,}' CERTIFICATE OF SERVICE I hereby certify that on July 13, 2005, I, Robert L. O'Brien, Esquire of O'Brien, Baric & Scherer, did serve a copy ofthe Motion To Withdraw As Counsel, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Joel Zullinger, Esquire 20 East Burd Street Shippensburg, Pennsylvania 17257 Jeff Goss Market Cross Pub & Inn 105 West King Street Shippensburg, Pennsylvania 17257 Michael E. Kosik, Esquire Angino & Rovner 4503 North Front Street Harrisburg, Pennsylvania 17110 / ~~ Robert L. O'Brien, Esquire :; 11 ~ ~"':~ fuElmiul~_M'- ,:,,_..- ',-- ~ftjjgti1MJj""r'~"4'- , ~~JIu0,g;;'f!'''- n;_ ~<<!f!il<nJ!-!l ~ -- ~~ ^~ ~. -, ", , ,- .~. . - ? ~ ' }'~F-; ~:" c-~, .- ~~;~" ~~ ~~~ "5 ::.-:} -< < -,.- o <:; -,.", o . , A. ~""" " IJ 1'1 1'1 f-! i~i i'1 ci f', ,~ II i I I I I i ...., g "-" r r f":::: o -n :r n1p 1]'-- :pcj 0(< ili~ ;rc" :-.D -< w ;t;t. ~ - S) e,.) o r ,"''''" ~ 'I ,- c __~__,_>-_ ._:- -ie-_.,I ,j . '_" > ,', ,~;-i,,'!-' "/ .., , '<c_ ,,~ ,., "':iti GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 15t.:, NO. 2001-365~CIVIL TERM CIVIL ACTION-LAW v. LAKESIDE HOLDING, INC., Defendant PRAECIPE FOR WITHDRAWAL OF COUNSEL AND APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please note my withdrawal as counsel for Lakeside Holding, Inc., Defendant in the above matter. Dated: crt? /~ I t O'BRIEN, BARIC & SCHERER BY: r ---'.k:())/.2.A .( ~ Robert L. clSnen, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Kindly enter our appearance on behalf of Lakeside Holding, Inc., Defendant in the above matter. Dated: -i1f l! ()(' BY: ..{ ~'--- er, Esquire 9974 Molly itcher Highway Shippensburg, Pennsylvania 17257 , " :! ii ~f ~---.. , ~,'.. _j' ",.w'~~"'~iMWl<ilitili!/l~~jiiRLitRi""",..k - - ~~~ - ,~- ",'~~ .,.;. ~"> > ....""..::.kg'.. ., x'"' "-,~ - <'-' <' -~+ I i II il I I I i I i 0 ", c:::::'l 0 ;; = 'T1 w1 (/) -:-' 1'1 iIl:TI " , , -G ~ :::t) '1' -.l ,--, ~'.:~ r~, ,~' " "1- -r', {-: :J1.;: ;~?cj.; ~~ 1'.) ~:m :::; ::;:i N :;,..,; :n (.n .< fJ ! ,. . "' " '-~-o.d>;' '~"~_,,L',y"\, f)........ RECEIVED ~t:8 13 2005 ~ , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff VS. : CIVIL ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY, INC., Defendant ORDER OF COURT AND NOW, this/or' day of February, 2006, upon consideration of the within Motion to Strike Amended Complaint, a rule is issued upon the plaintiff. Gloria Nickey, to show cause why the amended complaint filed by her should not be stricken. Rule returnable ~days after service thereof, and a hearing on the motion to be held on ~dll 'J ' the (p T/ day of ~A ~.{ ,2006, at / ; <~ , L. M. in Courtroom Lofthe Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT d- 13--oG ~ ~ ~ rtJ J. , .. ... 1<, - .... Jl.1!1I ~_~I!lIIlt1_"""'~_ ,~f'. ~< It?~ ~,_.~ . O~_'" ~'=" ,= OF FILED--Ofi'iCE TH~ ,-"""r- .-<, . ,r- )....,-', 11!~.11 1\1!)-1 "RY '.... ,t._,.: r,-'!'J\, A. ?HO' r-ED <uJJO r _,; 13 PM ". i " I Ii v. ~-.) c: iI'!,::i,~: .....1 ~ ':../,~ PEl' -,-:: Ihl1V -'-"'.")'>11 rI 1M ~JMI!!I!~~~~''''~',;R'Wt-i'E$;,*,!'-''''' "",~.,,,,:."t' ,-?'!r'Pf";"'::"~(~\ln~I-if!&'~"-'$IHt~~P"P~!'J!~~~'''O/!!}~jiW' - .. ,. 1-'1' .,. ll" ,- _~'wj - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff VS. : CIVIL ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY, INC., Defendant MOTION TO STRIKE AMENDED COMPLAINT COMES NOW, the defendant, Lakeside Holding Company, Inc., by and through its attorney, Sally J. Winder, and represents the following: 1. Plaintiff filed her complaint in this action on or about June 8, 2001. 2. Defendant filed preliminary objections to plaintiff's complaint on July 6,2001, and mailed a copy to plaintiff's attorney on July 10,2001. A copy of the transmittal letter accompanying the mailing of the preliminary objections is attached hereto, marked Exhibit "A" and incorporated by reference herein. 3. Defendant's then counsel, Robert L. O'Brien, entered into no agreement with plaintiff's then connsel, Joseph L. Hitchings, to extend the time for filing an amended complaint beyond the twenty (20) days allowed by Rule 1028(c)(l), Pa.R.C.P. 4. Plaintiff filed her amended complaint August 13, 2001, without having petitioned for leaye of Court to file her amended complaint. 5. Plaintiff's amended complaint was filed more than twenty (20) days after she had been served with a copy of defendant's preliminary objections. 6. Plaintiff's complaint has been filed in violation of the provisions of Rule 1028(c)(1), . Pa. R.C.P. ~ : , ,I ~I './Y' L_ "i""i .... ," 7. Plaintiff's amended complaint should be stricken. WHEREFORE, defendant, Ll;lkeside Holding Company, Inc., respectfully requests this Court issue a rule upon plaintiff, Gloria Nickey, to show cause why her amended equitable under the circumstances. complaint should not be stricken as untimely filed, and for such other relief as is just and ~dUJ~ Attorney for defendant, Lakeside Holding Company, Inc. j)~16b 9974 Molly Pitcher Highway Shippensburg, P A 17257 Telephone (717) 532-9476 '-'1, - ~ - _0',. ",..., ~ \1(";, Lall' (J!)/Ges .' O'IJRIEN, BARIC <~ SCHERER 17 lI'est Sallth Street Car/isle, Pennsyl\'ania 17013 lI"herl I.. O'/Jrien /)(l\'IcI..J. /Jartc .'""'we/.I. SclJf!rer (717) 2./9-6873 Fax (717) 2./9-5755 E.l1Ioi/: ()h.tfli),tJb.daU".C'om July 10, 2001 Joseph L. Hitchings, Esquire Saidis, Shuff, Flower and Lindsay 26 West High Street Carlisle, Pennsylvania 17013 Re: Nickev vs. Lakeside HoldinQ. Inc. No. 2001-3563 Dear Mr. Hitchings: Enclosed please find Preliminary Objections and a Motion to Strike Lis Pendens I have filed recently in the above-referenced matter. Very truly yours, O'BRIEN, BARIC & SCHERER 1261;) / ttfJ Robert L. O'Brien, Esquire RLO/af Ene. cc: d;:)" Lacy file y ~. rlo.d i r/clients/lakeside/h itchings.ltr E'Xt-IlrstT I( IJ A ~~,}jm<>1,ghj"J!\~ifMh~v$i;iltti;",~!i;ti;1J;;!iilY~1i!t',;;~iti,'<'%.iLl&Q[';J"'-Cj';G ,>"".c:1_i,a}_, <."'_,:.o'{" ___ ~ _~_"N_~'~~_'~ ~,..~=~, ,. "_.,. _'"~~_~~,'~. "1",..",,,. ~"~_~~, """ "~ - ~ ,"'~;cl.:o;U~_..,;;,.~_~~iliilllt1iilf-.~i~ ~, 0J1}- " ~ ~ . ~--' "",- JlI~-~ '".' :J :'; '. ;': j . ("') "" c = 0 = ;;:= "'"' ." ~?J.' ." ':I!:n ..." ---~ .-- co m.- ~r:." " -urn 0) I -- CO ?I3Y ~~t':; ''J c_~: ,-. """ ~.:;:!~, j~ ?~~ ::!i:: L5Z~ ?? (sm ..".:.. ~ :.:! N :J.J N -< ...,~~, I~ "0 ",'1 _ie.',_, 'i"__''[ ANGINa & ROVNER, p,c. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Atrorneys for Plaintiff(s) E-mail: mkosik@angino~rovner.com RECEIVED APR 06 20C6( GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs. NO. 2001-3563 LAKESIDE HOLDING, 1Ne. Defendant MEMORANDUM OF LAW I. Factual and Procedural Historv: This case arises out of a claim by the Plaintiff Gloria Nickey to recover monies which she loaned to the Defendant in the form of payments for operating expenses, direct loans, and loan of restaurant equipment. At the time, Plaintiff Gloria Nickey was managing the restaurant and bar, Nickey's Lounge at The King's Inn, and was in discussions to purchase the business from the Defendant. After the sale never materialized, Plaintiff sought to recover her loans and the value of her restaurant equipment. 1brough her counsel, Joseph Hitchings, Plaintiff filed a Complaint on June 8, 2001 in Cumberland County and filed a Praecipe for Lis Pendens on June 12, 2001 on property owned by the Defendant. Service was made by the Cumberland County Sheriff's office on June 15,2001. Defendant Lakeside Holding filed a Motion to Strike the Lis Pendens as well as Preliminary Objections to Plaintiff's original Complaint through its original counsel, Robert L. O'Brien, On August 13,2001, Plaintiff filed an Amended Complaint. The Court subsequently issued a Rule to Show Cause Why the Motion to Strike the Lis Pendens should not be granted, Plaintiff filed a Praecipe to Strike Lis Pendens on September 12,2001. 323588 ..--. , '-,,~,. , ,< {JI",J;-.,), ." .-" '~, ",,~1'it,j No action was taken by the Defendant with respect to the Amended Complaint filed by the Plaintiff on August 13, 2001 for over three and a half years until Plaintiff retained new counsel to pursue the claim, Plaintiff's current counsel entered his appearance on March 16, 2005 and simultaneously sent notice of Plaintiff's intent to take a Default Judgement. Defendant's counsel then filed a Motion to Strike the Notice of Default Judgement and listed the matter for argument with the Court. Prior to a hearing and argument, Defendant's counsel sought a continuance and then explored the possibility of settlement with Plaintiff's counsel. Documentation in the form of Defendant's accounting ledgers prepared by Defendant's accountant and other documents were supplied supporting Plaintiff's claim. Unfortunately, Defendant's original counsel apparently developed a conflict and withdrew as counsel in September of2005, Subsequent to Defendant's new counsel's entry of her appearance, Plaintiff's counsel wrote on numerous occasions inquiring as to whether settlement was still a possibility and received no response, As a result, Plaintiff again sent a Notice of Intention to Take Default on January 19, 2006 to which Defendant has again filed a Motion to Strike Default Judgement as well as Notice to Strike Plaintiff's Amended Complaint. These matters are currently pending before the Court, II, Issue: Whether the Defendant has waived its right to object to Plaintiff's Amended Complaint where it did not timely file Preliminary Objections or a Motion to Strike the Amended Complaint until after Plaintiff filed a Notice of Intention to take a Default Judgement more than four and a half years after the Amended Complaint was filed? Suggested Answer: Yes III. Sununarv of Argument Defendant Lakeside Holdings, Inc, is attempting to argue that the Plaintiff's filing of an Amended Complaint outside of the 20 days permitted for filing an Amended Complaint as a matter 323588 .,.~~-~ - - I~, ,'_c, '~H ,~ ,,,-;.,-. ", '~~ of course after service of Preliminary Objections requires that the Amended Complaint be stricken. The Pennsylvania Rules of Court nor case law supports this position, Plaintiff disputes the factual circumstances under which the Amended Complaint was filed and whether, in fact, it was filed without the consent of opposing counsel. The Amended Complaint was filed at most two weeks beyond the earliest date from which the 20 days permitted under the Pennsylvania Rules of Civil Procedure would have expired, However, after the filing of the Amended Complaint, Defendant Lakeside Holding took no action to raise an objection that the Amended Complaint did not satisfy Defendant's original Preliminary Objections by filing Preliminary Objections nor did Defendant move to strike the Complaint in at timely manner, In comparison, Defendant's Motion to strike the Amended Complaint now comes approximately four and a half years after the Amended Complaint was filed, Plaintiff maintains that Defendant has waived any right to object to Plaintiff's Amended Complaint, and Defendant should be required to file an Answer to the Complaint. Plaintiff has not entered judgement, but Defendant has chosen to challenge the Amended Complaint rather than answering. IV, Are:ument: The Defendant has waived its right to object to Plaintiff's Amended Complaint where it did not timely file Preliminary Objections or a Motion to Strike the Amended Complaint until after Plaintiff filed a Notice of Intention to take a Default Judgement more than four and a half years after the Amended Complaint was filed, A party may waive the right to object to defects in a pleading which is ftIed beyond the time that the pleading may be filed as a matter of course and without leave of court, by failing to take affirmative action to move to strike or other appropriate objection to the untimely pleading, In Advance Building Services Co. v. F&M Shaffer Brewing Co.. 252 Pa, Super, 579,384 A,2d 931 (1978), the Court examined the status of an amended complaint which was filed beyond the time 323588 . " ~ . ~ l'l ,'.." "._'cc ".k! which plaintiff could fIle the amended complaint as of course, The majority recognized: Although the amended complaint was filed without leave of court or consent of appellee more than ten days after the filing of the preliminary objections, appellee waived this defect by failing to object. See. Pa.R.C.P, 1028(c), 1033. 384 A.2d at 932, In Advance Building Services. the preliminary objections were filed on November 15, 1994 and the amended complaint was filed on December 12, 1994, approximately two weeks after the 10- day time period then permitted by Pennsylvania Rule of Civil Procedure 1028, 1bis is the same delay which the Defendant maintains resulted in this case, It is interesting that the dissenting judge on this panel, Judge Spaeth, would have decided this case on this issue alone and was in agreement with this portion of the majority's opinion, Waiver has been recognized not only where a complaint may have been filed outside the time period provided by the Rules, but also in situations where the amended complaint was filed beyond the date permitted in a court's order after ruling on the defendant's preliminary objections, In look v, Watterson. 31 D. & C, 3d 77 (1982), the plaintiff failed to file the amended complaint until 270 days after the 20-day time period permitted by the court's order granting leave to the plaintiff to file an amended pleading. The Court noted: Once plaintiff's amended complaint was filed, defendant's only recourse was to file a preliminary objection to this amended complaint on the grounds that it was not timely filed: Advanced Building Services Co, v, F&M Shaffer Brewing Co.. supra, Even if defendant had done so, this court would have not stricken the amended complaint because defendant does not claim that he was in any way prejudiced by the late filing. 31 D, & D, 3d at 80 (citations omitted,) The concept of waiver for failing to timely object does not only extend to complaints and amended complaints but also to answers or supplemental answers and new matter. In Rang v, 323588 - ,..... ,I,J." ~_'~'l:C" "~' ,-,~,,',,~. ,'"';,,' "j';.~: Allentown Women's Center. 5 D, & C, 4th 157 (1989), the Defendant filed a supplemental new matter almost a year and a half after their original answer and new matter without permission of court or the consent of the plaintiff, Although in violation of Pennsylvania Rule of Civil Procedure 1033 the court held that the plaintiff waived the right to object to the supplemental new matter. Although filed in violation of the Pennsylvania Rules of Civil Procedure, the Court stated: Obviously, defendant should have sought court approval in amending their new matter, However, it would appear that the burden is upon the opposing party to bring this error properly before the court, Since Plaintiff did not raise an objection until the summary judgement motion, we are required to, and in view of Advance. find the plaintiff waived any objection to defendant's supplemental new matter, 5 D, & C, 4th at 160 (footnote omitted.) Plaintiff has not taken a Default Judgement against the Defendant, and the Defendant still has the opportunity to file an Answer to Plaintiff's Amended Complaint, Plaintiff has already voluntarily supplied documentation to Defendant's prior counsel supporting the claims contained in Plaintiff's Complaint and voluntarily withdrew the Notice of Lis Pendens which was filed with the original Complaint. Plaintiff maintains that Defendant should be ordered to file an Answer to Plaintiff's Amended Complaint so that this case can finally move forward to a decision on the merits or suffer a default judgment. 'chael . Kosik J.D. No. 36513 4503 N, Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 323588 -',-- ~. ~, \ I l'l, --,-, k'-n_ CERTIFICATE OF SERVICE I, Michelle M. Milojevich, an employee of the law firm of Angino & Rovner, P,C" hereby certify that a true and correct copy of MEMORANDUM OF LAW hand-delivered to the following: Sally 1. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, P A 17257 'fJ11/'iuit7n I/hd~ Michelle M, Milojevich' DATED: 4/6/06 323588 _, ~~ """,0'_ '"' ~, ~,."~--)l'''O,," ,y,' . "-H '-'-"';'.i ; GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, CIVIL ACTION - LAW NO, 01-3563 CIVIL LAKESIDE HOLDING COMPANY, INC" Defendant IN RE: MOTION TO STRIKE AMENDED COMPLAINT AND MOTION TO STRIKE NOTICE OF ENTRY OF DEFAULT JUDGMENT ORDER I... AND NOW, this IP day of April, 2006, the motion of the defendant to strike amended complaint is DENIED, The motion to strike notice of entry of default judgment is DENIED and the defendant is directed to file an answer within twenty (20) days or suffer default judgment upon praecipe of the plaintiff, BY THE COURT, :rlm A;/ .Akhael Kosik, Esquire For the Plaintiff ~y 1. Winder, Esquire For the Defendant ~ ~bert 1. O'Brien, Esquire I m"" , ~ , I, I II Ii i,'l I' u I' Ii "I' ", " I~I [:1 ::1 i"il ; ~ f" !'J II I" !:1 i,1 " ['n l'I 'I 7?fJ~/ ,', 'I / _rJ!!l ~. lllll! FILED"{)j~FiCE nF TH~ ~M"r'L w" ,,'W, DV - I",.e_, -, !:'<'!j',.4h .....1 , !_ I ] "~', I "jl "', '1(., ~~% ZUOG APR -6 pr'l L,: 0 I , ~..m:~~~~~~ i!l'<:D~~",;,~o,,,,,,,,,,,~,",,-,,~ _. ,,,' ,~,}!!~j$!;>Ul~~!iIll".,...,.,.." " " , , ~'" . 1,/ -" :;'- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff vs. : CML ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY,INC., Defendant : . . NOTICE TO PLEAD TO: Gloria Nickey YOU ARE HEREBY NOTIFIED to plead to the enclosed New Matter within twenty (20) days after service hereof, or a default judgment may be entered against you. Dated:4/~ ) 00 /1 / ~ Sally J. inder, A orney for Defendant, Lakeside Holding Company, Inc. 9974 Molly Pitcher Highway Shippensburg, P A 17257 (717) 532-9476 ~G :.)>'-~ "-,~'".. , ~. , U,. ~~~",,"i' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GLORIA NICKEY, Plaintiff VS. : CIVIL ACTION : NO. 01-3563 LAKESIDE HOLDING COMPANY, INC., Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT AND NEW MATTER Comes now the defendant, Lakeside Holding Company, Inc., by and through its attorney, Sally J. Winder, and answers plaintiff's amended complaint as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that defendant is a foreign corporation doing business in Penn~lvania. It is denied that defendant has an address of One Beistle Plaza, Shippensburg, Cumberland County, Pennsylvania 17257, To the contrary, defendant avers that, at all times material hereto, its only address, and its only place of business, was located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania 17257. Defendant further avers that it never had an address and never had a place of business at One Beistle Plaza. 3, Admitted, 4, Admitted. 5. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 5, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 6. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 6, and the same are therefore denied. Proof thereof at the trial of the case is demanded, 7. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 7, and the same are therefore denied, Proof thereof at the trial of the case is demanded. 51 ~"..- ----.. I ~ ~I 'I ''''''''''~~:; 8. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 8, and the same are therefore denied. Proof thereof at the trial of the case is demanded, 9. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 9, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 10. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 1 0, and the same are therefore denied, Proof thereof at the trial of the case is demanded, 11. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 11, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 12. After reasonable investigation, defendant lacks information sufficient to form a beljefas to the truth of the averments of paragraph 12, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 13. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 13, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 14. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 14, and the same are therefore denied. Proof thereof at the trial of the case is demanded, 15. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 15, and the same are therefore denied. Proof thereof at the trial of the case is demanded. 16. After reasonable investigation, defendant lacks information sufficient to form a belief as to the truth of the averments of paragraph 16, and the same are therefore denied, Proof thereof at the trial of the case is demanded. NEW MATTER For further defense, defendant avers the following new matter: 17. At all times material hereto, defendant was a Florida corporation having its principal place of business in Pennsylvania at 105 West King Street, Shippensburg, Pennsylvania, 18. At all times material hereto, defendant had no place of business other than 105 West King Street, Shippensburg, Pennsylvania, -2- ~- " Lei ,~ ,- '^~~ili:L~:; 19. At all times material hereto, defendant had authorized no agent in writing to receive service of process for it. 20, The sheriff's return of service of original process in this case shows that the complaint and notice was served on June 14, 2001, at One Beistle Plaza, Shippensburg, PA 17257, by handing a true and attested copy to Tom Reed (Supervisor). A copy of the sheriff's return is attached and marked Exhibit "A" and incorporated herein by reference. 21. At all times material hereto, Tom Reed was not an executive, officer, partner or trustee of defendant. 22. At all times material hereto, Tom Reed was not the manager, clerk or other person forthe time being in charge of any regular place of business or activity of defendant. 23. No service of original process has ever been made on defendant in the manner prescribed by Rule 424, Pa. R.c.P., relating to service of original process on corporations. 24. In this case, the plaintiff has never obtained jurisdiction over the person of the defendant. 25. The statute oflimitations period in this case is four years, 26. The cause of action asserted by plaintiff in this case arose before June 8, 2001, the date on which the complaint was filed, 27. The cause of action asserted by plaintiff in this case arose more than four years before the date of filing this answer and new matter. 28, Plaintiff's cause of action is time barred by the applicable statute of limitations. 29. A major part of plaintiff's case relates to an agreement for the sale of real estate located at 1 05 West King Street, Shippensburg, Pennsylvania. 30. At all times material hereto, plaintiff and defendant never entered into a written agreement for the sale of the real estate located at 1 05 West King Street, Shippensburg, Pennsylvania. 31. The Statute of Frauds provides that no agreement for the sale of real estate will be enforced unless in writing and signed by the party to be charged. 32, In this case, for purposes of the Statute of Frauds, defendant is the party to be charged. -3- .,L, , ,,:-?" " "'<,r~ 33. Plaintiff's claim is barred by the Statute of Frauds. 34. At all times material hereto, defendant was the alter ego ofH. Ric Luhrs, 35. At all times material hereto, H. Ric Luhrs was the sole stockholder of defendant. 36, At all times material hereto, H. Ric Luhrs was the president, agent, and chief executive officer of defendant. 37. At all times material hereto, H. Ric Luhrs failed to observe corporate formalities with regard to defendant, 38. At all times material hereto, H. Ric Luhrs substantially intermingled personal and corporate affairs with regard to defendant. 39. At all times material hereto, H. Ric Luhrs wholly ignored the separate status of defendant and so controlled and dominated its affairs that its separate existence was a mere sham. 40. Defendant believes, and therefore avers, that H. Ric Luhrs was the only person with whom plaintiff had discussions or negotiations about the business and real estate which was defendant's principal place of business at 105 West King Street, Shippensburg, Pennsylvania. 41. H. Ric Luhrs died November 20,2004. 42. Under the Pennsylvania Dead Man's Act, 42 Pa,C.S.A. ~5930, plaintiff is incompetent to testify to matters pertaining between herself and H. Ric Luhrs with respect to the real estate and business owned and operated by H. Ric Luhrs in the corporate form of defendant, 43. At all times material hereto, plaintiff and H. Ric Luhrs never entered into any agreement, either written or oral, for the purchase of the real estate and business owned by defendant. 44. If plaintiff contributed her own funds to pay expenses of the business, her contributions were gifts to the business and not loans to the business. 45. If plaintiff contributed personal property to help operate the business, her contributions were gifts to the business, made without any reasonable expectation of recovering such personal property to her ownership and possession. 46. Defendant has no legal obligation to reimburse plaintiff for any of her own funds contributed to pay expenses of the business, -4- -. " " l"" .I'j -"0. ~.;"'. ,'--' 1~:~: j 47, Defendant has no legal obligation to return to plaintiff's possession any personal property contributed to help operate the business. 48. Defendant has no legal obligation to pay plaintiff the value of any personal property contributed by her to help operate the business WHEREFORE defendant prays that this Court dismiss plaintiff's amended complaint and that judgment in the case be entered in favor of defendant and against plaintiff, and that defendant be awarded its costs of defense, including attorneys fees, and such other and further relief as may be just and appropriate. Dated: '-f);;).fo) O-b I J-_ Sally J. W' der, Attorney for Defendant Lakeside Holding Company, Inc. 9974 Molly Pitcher Highway Shippensburg, P A 17257 (717) 532-9476 -5- - . , ="~ _'.l,1 ~- .'\ ~=, ~ 'i' ","o.L' SHERIFF'S RETURN - REGULAR <. CASE NO: 2001-03563 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NICKEY GLORIA VS LAKESIDE HOLDING INC BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LAKESIDE HOLDING INC the DEFENDANT , at 0016:45 HOURS, on the 14th day of June , 2001 at ONE BEISTLE PLAZA SHIPPENSBURG, PA 17257 by handing to TOM REED (SUPERVISOR) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service . Affidavit Surcharge 18.00 13.02 .00 10.00 .00 41.02 SO:?~~~~~e R. Thomas Kline - me this ;J <e.. day of Sworn and Subscribed to before ~ J..iJOl _ A.D. ~___a.~,~ rothonotary I, All E i--h\ bOlt t,,' . __I ",' '~"-~,-~ ,-~ ' ."'''c '. VERIFICATION I am an officer of defendant corporation. I verify that the facts set forth in the , foregoing _ ~l e:. a-J \-", '2s ' are true and correct to the best of my knowledge, information and belief. I make this verification subject to the provisions of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities, Dated: ,;1 4!?-b f 06 , 7 ~iUilr .",~;.,- ~~ ,.j""'~i!Ml1iI~"~jr""'d..'--'" >- 0\ S~ U_ft:: J) (. {~J:,_" [~jf:E EC!~l-! .J_ !- t1-- o ~~ t~O (''.1 r,__ ~s.: ~ ,-,~'; r- g-~ ~~,-~~.~~~~~" - '~'ilJi~I&~,li1:'C~"'I.M<;~'*~ill!lS!J..__',,<;]f1!l...w-Jl'M.t r.i1liMIli'~~ .!,.---,- u ". .~,~~,<,~ .~~,- ,'. .,-- ~. "C:lliI'~~ ~ . ',f Lj II ,I II <,j I - "t: .--- ,,;,"'-;1 " ANGINO & ROVNER, P,C. Michael E. Kosik, Esquire Attorney ID#: 36513 4503 North Front Street Harrisburg,PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff\s) E-mail: mkosik@angino-rovner.com GLORIA NICKEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. vs, NO. 2001-3563 LAKESIDE HOLDING, INC, Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 17, Admitted, It is admitted that Defendant was a Florida corporation with its principle place of business located at 105 W. King Street, Shippensburg, Pennsylvania, By way of further response I Beistle Plaza, Shippensburg, PAis the address of one of its officers, 18, Plaintiff is without knowledge or information sufficient to form a belief as to whether Defendant Lakeside Holdings conducted business at any other location other than 105 West King Street, Shippensburg, Pennsylvania. The Articles of Incorporation for Lakeside Holdings filed in Florida did identify Patricia D. Lacey, Assistant Secretary and an address at 1 Beistle Plaza, Shippensburg, P A. See, Annual Uniform Business Report for 200 I hereto as Exhibit A. 19. Denied, Plaintiff is without knowledge or information sufficient to form a belief whether Defendant ever had an agent authorized to receive service of process, Service of process need only conform with the Pennsylvania Rules of Civil Procedure, specifically Pa.R,C,P, 424 which provides for service on any executive officer, partner, or trustee or manager, clerk or other person for the time being in charge of any regular place of business or entity of the corporation, 20, Admitted. 21. Denied, It is specifically denied that Tom Reed was not a person who for the time 325318 ~ C';:'_ " being was in charge of a regular place of business or activity of the corporation where service was made. The sheriff's return specifically identifies Tom Reed as "Supervisor" which indicates his position of authority and being in charge of the location where service was made, As previously indicated, the address where service was made was identified as an address for the Assistant Secretary of the corporation and, therefore, was a valid address on which service could be made and was made in this case. 22, Denied, It is specifically denied that Tom Reed was not a person who for the time being was in charge of a regular place of business or activity of the corporation where service was made. The sheriff's return specifically identifies Tom Reed as "Supervisor" which indicates his position of authority and being in charge of the location where service was made, As previously indicated, the address where service was made was identified as an address for the Assistant Secretary of the corporation and, therefore, was a valid address on which service could be made and was made in this case, 23, Denied, It is specifically denied that service was not made upon an individual who complies with the provisions of Pennsylvauia Rule of Civil Procedure 424, Additionally, Defendant did not raise this objection nor pursued this issue via Preliminary Objections and has now answered Plaintiff's Complaint, thereby waiving any issue of service. 24, Denied. This averment is a conclusion of law to which no responsive pleading is required. To the extent that a response may be deemed proper, it is specifically denied that Plaintiffs have not obtained jurisdiction over the Defendant. Plaintiff maintains service was accomplished on the Defendant as required and in compliance with the Pennsylvauia Rules of Civil Procedure as previously stated, Additionally, Defendants have waived any objection to service by failing to raise and pursue this issue by way of Preliminary Objection and have waived this issue by Defendant's CotIDSel answering Plaintiff's Complaint. 325318 ~ '_<', "c ~ <' 25. Denied, This averment is a legal conclusion to which no responsive pleading is required, To the extent that a response may be deemed proper, it is admitted that the statute of limitations applicable to Plaintiff's claim would be a four year or six year statute of limitations. Such allegation is irrelevant since the statute of limitations was adequately protected since the Complaint was timely filed and served on the Defendant. 26, Admitted, 27, Plaintiff maintains that the Defendant's filing of its Answer and New Matter is irrelevant to the rumring of the statue of limitations, Plaintiff's Complaint was timely filed and served on the Defendant as previously stated, 28. Denied. This averment is a conclusion of law to which no responsive pleading is required, To the extent that a response may be deemed proper, it is specifically denied that Plaintiff's cause of action is barred by the applicable statute of limitations, As previously stated, Plaintiff's Complaint was timely filed and properly served on the Defendant. 29, Denied, It is specifically denied that a major part of Plaintiff's cause of action relates to an agreement of sale for real estate located at 105 W. King Street, Shippensburg, PA. To the contrary, it is averred that Plaintiff's Complaint states in paragraph 9, "although an agreement of sale was drafted and revised on several occasions, the agreement was never fully executed by the parties," Plaintiff's claim is for money loaned to the Defell,dant and equipment loaned to the Defendant and not for the breach of any agreement for the sale of real estate. 30, Admitted, See paragraph 9 of Plaintiff's Complaint previously referenced in paragraph 29 above. 31. Denied, This averment is a conclusion of law to which no responsive pleading is required. To the extent that response may be deemed proper, it is specifically denied that an agreement for the sale of real estate is the basis for Plaintiff's Complaint as previously stated, As 325318 ",' .' "'-' j,J .r"'1'I previously stated, Plaintiff's Complaint specifically avers that no agreement was ever entered into and therefore the statute of Fraud is irrelevant to Plaintiffs' claim. 32, Denied. This averment is a conclusion of law to which no responsive pleading is required. To the extent that response may be deemed proper, it is specifically denied that an agreement for the sale of real estate is the basis for Plaintiff's Complaint as previously stated. As previously stated, Plaintiff's Complaint specifically avers that no agreement was ever entered into and therefore the Statute of Fraud is irrelevant to Plaintiffs' claim, 33, Denied, This averment is a conclusion of law to which no responsive pleading is required. To the extent that response may be deemed proper, it is specifically denied that an agreement for the sale of real estate is the basis for Plaintiff's Complaint as previously stated, As previously stated, Plaintiff's Complaint specifically avers that no agreement was ever entered into and, therefore, the Statute of Fraud is irrelevant to Plaintiffs' claim. 34,-40. It is specifically denied that Defendant Lakeside Holding Company, Inc. was an alter ego of H, Rick Luhrs, an individual, At all times relevant, Lakeside Holding Company, Inc, was a duly constituted Florida corporation which was registered to do business in Pennsylvania, Defendant Lakeside Holding Company, Inc, has not and cannot allege fraud or any circumstance in which to pierce its own corporate veil and any such allegations that Defendant Lakeside Holding Company, Inc. is not the proper party Defendant in this action is denied, 41. Admitted, 42, Denied, This averment is a conclusion of law to which no responsive pleading is required. To the extent that a response may be deemed proper, it is specifically denied that the Pennsylvania Deadman's Act, 42 Pa,C,S.A. ~5930, is applicable to Plaintiff's cause of action since the Plaintiff is suing a corporation not a person. Furthermore, Plaintiff has already provided documentation prepared by the Defendant's own bookkeeper substantiating loans made by the 325318 " Plaintiff to the corporation in the form of cash as well as payments for operating expenses and loans of equipment. 43. Denied, As previously stated, Plaintiff's complaint in paragraph 9 indicates that although discussions concerning an agreement of sale of Defendant Lakeside Holding had occurred an actus! agreement was never achieved with the Plaintiff Gloria Nickey. Any agreement of sale for Defendant Lakeside Holdings would have to have been executed by the proper representatives of Defendant Lakeside Holdings Company, Inc. which never occurred, 44. Denied. It is specifically denied that Plaintiff's contribution of her own fimds to pay expenses of the business were gifts to the business, To the contrary, Plaintiff's contributions to the expense of the business were loans which were verified in the books and records of the business verifying that these were loans and not gifts, 45. Denied. It is specifically denied that Plaintiff's contribution of her own funds to pay expenses of the business were gifts to the business, To the contrary, Plaintiff's contributions to the expense of the business were loans which were verified in the regular books and records of the business verifying that these were loans and not gifts, It is specifically denied that Plaintiff's loans of personal property to the business were made without any reasonable expectation of recovery of her personal property or the value of the personal property which she loaned to the business. As previously stated, these loans were documented on the books of the business. In fact, Plaintiff Gloria Nickey was induced to make these loans and contributions to the business because she was in discussions to purchase the business and was anticipated that these contributions would have been used as payment towards the purchase price of the business which was never accomplished, It was always understood and expected by the Plaintiff Gloria Nickey that these loans would be honored and satisfied by the Defendant. 46. Denied, It is specifically denied that Defendant Lakeside Holdings Company had no 325318 .' legal obligation to reimburse the Plaintiff for the monetary contributions and equipment which she loaned and contributed to the business, To the contrary, it is averred that these transactions were carried as loans on the books and records of the business documenting Defendant's obligation to repay the loans and return the property to the Plaintiff. 47, Denied. It is specifically denied that Defendant Lakeside Holdings Company had no legal obligation to reimburse the Plaintiff Gloria Nickey for the monetary contributions and equipment which she loaned and contributed to the business, To the contrary, it is averred that these transactions were carried as loans on the books and records of the business for which Defendant had an obligation to repay the loans and return the property to the Plaintiff, 48, Denied. It is specifically denied that Defendant Lakeside Holdings Company had no legal obligation to reimburse the Plaintiff Gloria Nickey for the monetary contributions and equipment which she loaned and contributed to the business, To the contrary, it is averred that these transactions were carried as loans on the books and records of the business for which Defendant had an obligation to repay the loans and return the property to the Plaintiff, WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss Defendant's New Matter enter judgment in favor of Plaintiff and against Defendant. ER,P,C, Michael E. Kosik LD, No. 36513 4503 N, Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 325318 - ,'~ w .. VERIFICA nON I, GLORIA NICKEY, do hereby swear and affirm that the facts set forth in the foregoing Reply to New Matter is true and correct to the best of our knowledge, information and belief, I understa11d that this verification is made subject to the penalties of the Rules of Civil Procedure relating to unsworn falsification to authorities. ~. ) ~1~ GL RIA NICJy Dated: ~';'-/.r-;:2J6 ,~,'" II .~ l;1 -, ~ ".' t~ 2001 UNI~ORM BUSINESS REPORT (UBR) FILED DOCUMENT # P96000096933 .. - - 1" Jan 23, 2001 8:00 am 1. Entity Nama Secretary of State LAKESIDE HOLDING COMPANY. INC. 01-23-200190091043 ***158,75 Principal Place of Business Mailing Address Ell20 LE lAC RD Ell20 LE LAC RO BOCA RATON FL 33496 BOCA RATON Fl 33496 (jU6~08 2. Principal Place of. Business 3. Mailing Address 1111~1~11I1I111111111~1111111111~11111~1:1~1111I~11I11~111II Suite, Apt II, etc. Suite, Apt It, etc. DO NOT WRITE IN THIS SPACE CilY & State City & State 4. FEr Number 65-0714325 I IApplled For I I Not AppHcabl. Zip I Country Zip I Country 5. Certificate of Status Desired Ili:I $8.75 Addhional Fee Required 6. Name end Address of Current RMlstBred Agent 7. Name and Address of New Reglatered Agent .n_. -- Name - ..- ,". - ,. LUHRS, H. RlC Street Address (P.O. Box Number is Not Acceptable) 6020 LE lAC AD BOCA RATON Fl 33496 City FL I Zip Code 8. 1M above named entity submllS this statemenl tOl' the purpose of changing its registered office or registered agent, or both. in the State of Florida, SIGNATURE SignllltP, lypedot pritll8dnameof,egisleredagentand~ II applicable, (NOTE: Regislered Agam slgnatllre requiredwl>en lIIinsteting) DATE 9. ThIs corporation is eligible to satisfy its Intangible FILE NOWIII FEE IS $150,00 10. Election Campaign Financing $5,00 May a. Tax filing (equirement and e!ectS to do so. Alter MAY 1, 2001 FeewiH be $55O,QO (see criteria on back) 0 Make Check Payable 10 Depertm.nl 01 stele Trust Fund Contribution. 0 Added to Fees 11. OFACERS AND DIRECTORS 12- ADDITIONSICHANGES TO OFFICERS AND DIRECTORS IN 11 TITlE PST OOele~ Tlill o Change o Add1l1on NAME WHRS, H. RlC NAME smEET~DRfSS 6020 LE LAC RD STREETADDRESS CITYpST-Z1P Rnr.A RAmN R CITV-ST-Z1P 1T1lE AS OO.oJe TI1lE DCIlalli' o AddlUon NAM, LACY, PATRICIA D. IiAME STREET.&DORESS PO BOX 10, 1 BElSllE PlAZA STREETADDRESS CITY-ST~Z1P PA CITY-Sf-ZIP TI1lE , . -~ _ -.O..Qe~,-. TI1lE - - DChani' o Addition . IiAME ..... sTREET.ADDnESS STREETADDRESS CITY-ST-ZlP CITY-Sf-lIP Tlill DOelele TI1lE o Change o AddillOll ".... ..... STREET ADDRESS STRm'ADDRESS CITY-Sf-ZIP CITY-ST-ZlP TI1lE DOelele TI1lE OChani' o Addilion IiAME ..... smEETADORESS STREErADDRESS ClTY-ST..ZlP CITY-ST-Z1P mLE OOeOj. TI1lE DChani' o Addnion ....E NMll' STJIEETADORfSS STREErADDRESS CITY-ST"ZlP CITY-Sf-ZIP 13. I hereby certi~ tIlat the InformatIon supplied with this ming does not qualify for the exemption stated in Section 119.Q7(3)(i). Florida Statutes. I further certify that the information indicated on t Is report or supplementaf report ~~~ accurat~~ thai my signature shall have the same legal effect as if made under oath: that I am an officer or director of the corporation or the receIver or trustee empowere 0 execu\e . report: aSlequ1red 'o'i Chapler &if, FlorIda S\atul.as; and tha\ my name appears in Block l' orBtock 12 if Changed. or on an attachment with an addresS, 1 . r ~ ered. . SIGNATURE: ~ ./ ~:R'r.. Lu/,,.f ,h ~I ("6'1- 99'1f-~.rr6 S1G OTYPEDORPRlHIEDNAMEOFSlGNIHGOFFIClO:ROROlflEClOR ( 0#1'0 OayJimePhoi1e' ~ .. ~ 1l! () . CERTIFICATE OF SERVICE I, Michelle M, Milojevich, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of PLAINTIFF'S REPLY TO DEFENDANT'S NEW MA ITER was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, PA 17257 /f'/I!;,,/djj}j lhYv7 Michelle M, Milojevich DATED: 5/19/06 3Z5318 ~~~'~~iiilWt!li$-;t'li'~,iji1i!;,*Il1",~~,i\iMi~*:mifiV;4J!Wili,",~;T~ ~ ~"" ~, ~ " ,~ ,"' .~~ '^'~-,;-<~,~~,~.<, "~. " ~ "",-~', ~ ,~, ~ , """~1'lL- ~"--'~~M'~ ...ati!IIllJ -~. N__ ,~- ,~, ,~~^ . ~ ,. -0i;:'~ iT,I" z: , - ;.._c~ '. ". ~ ," )'>C': 2: =< ("') C - . "" = = "" o -n -f X" nlf.- 'TIT! ~~;'JCJ ':J ' '-:'t~~~ t~;~ ;")rT1 ::::j 'Io> ~;(] --< ~ ,.r:...' -( N N :!? -", C.0 a m ;:: ,.~ , "c~ . I 1, ~~~ i " -,-,^.'~ "i ~.o,,;( SAIDIS SHUFF, FLOWER & LINDSAY ATIORNEVS.AT.UW 26 W, High Street Carlisle. P A GLORIA NICKEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: Df-.U'W C0l(/~- Plaintiff v. LAKESIDE HOLDING, INC., Civil Action - Law Defendant PRAECIPE TO THE PROTHONOTARY: Please index this action as a lis pendens against the Defendant, Lakeside Holding, Inc. located at 105 West King Street, Shippensburg, Cumberland County, Pennsylvania, 17257. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY By: sq. i Ii ,!i I'; Ii !,) i,' i I I II !\!lld:~LH "1';;~";~jrn~~._j~~>J;~tli~II!~~%"\Q(~~e;;'t~';>.W,iJtili!%oli<',""4';;"@''%'i&~~'LRffi~_-llM_ililllUN~_~~; ~"~='~ ,~, - - n 0 0 c s:: ." 0 -<Q. "U OJ L. :":-J fJ rTlrr c:: :-0 z., ~ -,-, r -- ZF '-'~~0 1t: 0 w)> l'o.;, "-..' Jk -<2: ~~d ~~~ () ~c:: )> ~ ZC -"~. . , '- ~. -,':::-::; '- J-J ~-o ~, , ...... ~ Pc 0 fji"r'l ~ Z ~i , :;! w 55 ~ ~ f0 -< '- ~ -.!.... cvV - J"i