HomeMy WebLinkAbout99-04210
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KEYSTONE STAFFING SERVICES, : IN THE COURT OF COMMON PLEAS OF
INC., : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF/RESPONDENT
V.
ACCESS MARKETING and
ROBERT MICHALSKI,
DEFENDANTS/PETITIONERS 99-4210 CIVIL TERM
ORDER OF COURT
AND NOW, this 31 day of August, 1999, upon consideration of the foregoing
petition, IT IS ORDERED:
(1) A Rule is issued against respondent, Keystone Staffing Services, Inc., to
show cause why the petition to open judgment should not be granted.
(2) Respondent shall file an answer to the petition within fifteen (15) days of
service.
(3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7.
(4) Any depositions shall be completed within thirty (30) days of service.
(5) Briefs shall be filed in chambers and argument shall be held on Tuesday,
September 21, 1999, at 1:30 p.m., in Courtroom No. II of the Cumberland County
Courthouse.
(6) Notice of the entry of this order shall be provided to all parties by petitioner.
(7) All proceedings shall stay pending further
By the Court,)',
Edgar B. Baylb , J.
11 ?:
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Richard E. Guide, Esquire
For Plaintiff/Respondent Y4/99.
Craig A. Diehl, Esquire 'd do.
For Defendants/Petitioners
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KEYSTONE STAFFING SERVICESt IN THE COURT OF COMMON PLEAS OF
INC.0 CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff/Respondent s
Va. i N0. 99-4210 CIVIL
i
ACCESS MARKETING and CIVIL ACTION - LAW
ROBERT NICHALBKI,
Defendants/Petitioners s
PETITION TO OPEN DEFAULT JUDGMENT
AND NOW, come Petitioners, Access Marketing and Robert
Michalski (hereinafter referred to as "Petitioners"), by and
through their counsel, Law Offices of Craig A. Diehl, and file this
Petition, respectfully stating in support thereof the following:
1. Petitioner, Robert Michalski, is an adult individual who
resides at 806 Allen Street, New Cumberland, Cumberland County,
Pennsylvania 17070.
2. Petitioner, Access marketing is not an existing business
entity under the laws of the Commonwealth of Pennsylvania.
2. Petitioners are the Defendants in the above-captioned
matter.
3. Respondent is Keystone Staffing Services, Inc., with a
business address of 360 Market Street, Lemoyne, Cumberland County,
Pennsylvania 17043 (hereinafter referred to as "Respondent").
4. Respondent is the Plaintiff in the above-captioned
matter.
5. Petitioners were improperly named as Defendants in the
above-captioned matter.
6. A Complaint was filed against Petitioners/ Defendants
above-named to docket number CV-0000203-99 before District Justice
Charles A. Clement, Jr. on or about April 26, 1999.
7. Upon information and belief, a default judgment for the
sum of $4,106.51 was entered against both Defendants to docket
number CV-00000203-99 on or about May 24, 1999.
S. A Notice of Appeal from District Justice Judgment,
appealing the default judgment entered to CV-0000203-99, was timely
filed on June 21, 1999, to docket number 99-3734 Civil in the Court
of Common Pleas of Cumberland County, Pennsylvania. (See Exhibit
"A" attached hereto).
9. Despite the Notice of Appeal as filed, a judgment was
entered by Respondent in the Court of Common Pleas of Cumberland
County to docket number 99-4210 Civil on July 12, 1999.
10. Petitioners have meritorious defenses to the claims of
Respondents Complaint as follows:
a. Neither Petitioner is or has been a party to any contract
with Plaintiff /Respondent, nor are Petitioners liable for any
contract between Plaintiff /Respondent and any known business
entity.
b. The contracts upon which Respondent/Plaintiff based the
claims of its complaint are with a corporate entity
established and doing business pursuant to the laws of the
Commonwealth of Pennsylvania. Petitioners, the Defendants
above-named, were not parties to said contracts.
C. Petitioners owe no duty to Respondent/ Plaintiff, and
therefore, are both improper parties to said action.
d. Petitioners, being improperly named as Defendants in the
complaint, have no legal obligation to make any payments for
the subject contracts.
e. The ownership of the contracts upon which
Respondent/Plaintiff's claims were based was transferred prior
to the filing of the civil complaint before District Justice
Charles A. Clement, Jr. to Phillips Factors Corporation, with
a mailing address of P.O. Box 890011, Charlotte, North
Carolina.
f. If its is determined that a valid claim of any nature
exists, it is averred that the owner of the subject accounts
is the proper Plaintiff for such claim, and not the Plaintiff
as named in the initial complaint filed to docket number CV-
0000203-99 before District Justice Charles A. Clement, Jr.
11. Because an appeal of the judgment filed to docket number
CV-0000203-99 before District Justice Charles A. Clement, Jr. was
timely filed, the judgment for Plaintiff entered in the Court of
Common Pleas of Cumberland County, Pennsylvania to docket number
99-4210 Civil was improper.
12. For the reasons described above, a Writ of Execution
and/or Attachment to docket number 99-4210 Civil was improperly
issued against Petitioners.
13. Moreover, Respondent executed upon the property of Access
Marketing and Data, Inc., although that entity was not named as a
Defendant in this action. Said execution and attachment is
improper and has caused detriment to Petitioner.
14. Petitioners sought relief in this matter with due
diligence.
15. Unless the judgment is opened and Petitioners are allowed
to interpose their defenses, a great injustice will result.
WHEREFORE, Petitioners, Robert Michalski and Access Marketing,
respectfully request that the Court grant a rule upon the
Respondent/Plaintiff, Keystone Staffing Services, Inc., to show
cause why the judgment entered June 15, 1999, for the sum of
$4,106.51, should not be opened and Petitioners/ Defendants,
permitted to make a defense.
Date TTgyp
Respectfully submitted,
LAW OFFICES OF CRAIG A. DIEHL
By: Q CJ;. / Q
Crai A. Diehl, Esquire
Attorney I.D. No. 52801
3464 Trindle Road
Camp Hill, PA 17011
(717) 763-7613
KEYSTONE STAFFING SERVICES, s IN THE COURT OF COMMON PLEAS OF
INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff/Respondent s
Vs. NO. 99-4210 CIVIL
i
ACCESS MARKETING and s CIVIL ACTION - LAN
ROBERT MICHALSKI, s
Defendants/Petitioners a
VERIFICATION
I, the undersigned, hereby verify that the statements made in
the foregoing document are true and correct to the best of my
knowledge, information and belief. I understand that the
statements herein are made subject to the penalties of IS Pa.C.S.
S 4904, relating to unsworn falsification to authorities.
f
Date:
ROB RT MICRALSKI
.,..,.,, ,,. 1 ... . . , 1 I I Exhibit A
)MMONWEALTH OF PENNSYLVANIA NOTICE OF'APPEAL _',?•.
COURT OF COMMON PLEAS
FROM
JUDICIAL DISTRICT
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS Na 9 9 ? 37,3,1
NOTICE OPAPPEAL
Notice is given Ihot, the appellant has filed in the abovo Court of. Common Pleas on appeal from the judgment rendered by the District Justice:on the
,. date and in the case mentioned below. '•rr - r ,:,
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" 's rketin Data Inc. NAME OP,MPEl1ANT IN L N R NAME as
324'Tlarket Street Lemoyne PA `17043 Charlcs Clement Jr.
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`°.S 24-99' Ke stone Stiffing' Services.;Znc.vs Access MarketingtRgbert'Michalski
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v':Tha' Notice' ofrAppeal; when received by the, District Justice,' will opetale,ias, a,001(6), in action before District Justice, he MUS
.: SUPERSEDERS to the judgment for possession in this case.
y v e', FILE A COMPLAINT within twenty, (20) days aft(
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(1) You'are notified that a rule is hereby
entered upon you to fiile;dcomplaint in this appeal within twenty (20) days after the date of C,
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'service of this rule upon you by personal service'or by certified or registered mail •? • ' ' d •,
`(2) If you do not file a
complaint within this time
aIJUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU
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KEYSTONE STAFFING SERVICES,
INC.r
Plaintiff/Respondent
vs.
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners
IN THE COURT OF COMMON PLEAS OF
2 CUMBERLAND COUNTY, PENNSYLVANIA
s
NO. 99-4210 CIVIL
s CIVIL ACTION - LAN
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this date, a true
and correct copy of the foregoing document was served upon the
opposing parties by way of United States First Class Mail, postage
prepaid, addressed as follows:
Richard E. Guida, Esquire
503 North Front Street
Harrisburg, PA 17101
(Counsel for Respondent/Plaintiff)
LAW OFFICES OF CRAIG A. DIEHL
Date: "7 al9 9 gy.
nda A. lotfe ter, squire
464 Trindle Road
amp Hill, PA 17011
(717) 763-7613
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KEYSTONE STAFFING SERVICES,
INC.,
Plaintiff/Respondent
VS
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-4210
ANSWER TO PETITION TO OPEN JUDGMENT
AND NOW, this 17 day of August 1999 comes Keystone
Staffing Services, Inc., above-named Plaintiff /Respondent, by and
through its attorney, Richard E. Guide, Esquire, and respectfully
avers the following:
1. Admitted.
2. Neither admitted nor denied.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. Petitioner Robert Michalski obtained
temporary employment services from Respondent. Throughout the
transactions, Michalski's company was referred to as Access
Marketing without objection by Michalski.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted that a judgment indexed at 99-4120 was
entered against Petitioners. Petitioners failed to serve
Respondent with the Notice of Appeal. Petitioners also failed to
file Proof of Service with the Prothonotary.
10. Denied. The contract was between Petitioners and
Respondent.
11-12. Denied. The appeal is invalid. Petitioners
failed to serve Respondent with the appeal and failed to file
proof of service of the appeal.
13. Denied. The writ of execution lists Petitioners
as the defendants. Furthermore, Petitioner Access Marketing is
the same entity as Access Marketing and Data, Inc.
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14. Denied. Petitioners failed to follow through with
the Notice of Appeal.
15. Denied. Petitioners have no meritorious defenses.
WHEREFORE, Plaintiff/Respondent respectfully requests
that Petition to open Default Judgment be denied.
Respectfully submitted,
-t r
Richard E. Guida
503 North Front Street
Harrisburg, PA 17101
717-236-6440
Identification #62405
Attorney for Plaintiff
KEYSTONE STAFFING SERVICES, IN THE COURT OF COMMON PLEAS
INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff/Respondent
VS No. 99-4210
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners
I VERIFY THAT THE STATEMENTS MADE IN THIS Answer to
Petition to Open Judgment ARE TRUE AND CORRECT. I UNDERSTAND
THAT THE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF
18 PA.C.S.A. SECTION 4904 RELATING TO UNSWORN FALSIFICATION TO
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`Signature
6.9iL A. VIZZe-eA)
Printed Name
boo,?,?e e?
Title
21-17- 99
Date
KEYSTONE STAFFING SERVICES,
INC.,
Plaintiff /Respondent
VS
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants /Petitioners
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-4210
CERTIFICATE OF SERVICE
I, Richard E. Guide, Esquire, hereby certify that a
true and correct copy of ANSWER TO PETITION TO OPEN DEFAULT
JUDGMENT was served upon the following parties by regular U.S.
Mail, postage prepaid, this 17 day of August 1999, addressed as
follows:
Craig A. Diehl, Esquire
3464 Trindle Road
Camp Hill, PA 17011
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Richard E. Guide
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KEYSTONE STAFFING SERVICES, IN THE COURT OF COMMON PLEAS
INC., CUMBERLAND COUNTY, PENNSYLVA
Plaintiff/Respondent
VS
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners No. 99-4210 CIVIL TERM
TO THE HONORABLE EDGAR B. BAYLEY, JUDGE OF SAID COURT:
PLAINTIFF/RESPONDENT'S BRIEF IN
OPPOSITION TO PETITION TO OPEN JUDGMENT
STATEMENT OF FACTS
In January 1999, at Defendants' request, Plaintiff
provided temporary employment services to Defendants. All of the
timecards of the temporary employees were signed and approved by
Defendants. Despite invoices and other repeated efforts by
Plaintiff for payment, Defendants failed to make any payment to
Plaintiff for the services.
On April 26, 1999, Plaintiff filed a Civil Complaint
against Defendants at District Court 9-1-01, indexed at CV-203-
99. On May 24, 1999, District Court 9-1-01 entered judgment in
favor of Plaintiff and against Defendants in the amount of
$4,106.51. More than thirty days later on July 12, 1999,
Plaintiff filed the district justice judgment at the Cumberland
County Courthouse, indexed at 99-4120. A writ of execution was
also created and delivered to the Sheriff.
On July 29, 1999, Plaintiff's counsel received a copy
of Defendants' Petition to Open Judgment. Through this Petition,
Plaintiff learned for the first time that Defendants filed a
Notice of Appeal on June 21, 1999, indexed at 99-3734 Civil.
Defendants failed to serve Plaintiff and District Court 9-1-01
with a copy of the Notice of Appeal, nor did Defendants in any
other manner notify Plaintiff and District Court 9-1-01 of the
appeal. Furthermore, Defendants failed to file with the
Prothonotary Proof of Service of the Notice of Appeal and Proof
of Service of a Rule upon Plaintiff to file a Complaint.
DISCUSSION OF THE ISSUES
Defendants Petition to Open Judgment should be denied
because Defendants do not have a valid excuse for failure to
defend against the Complaint. Defendants allowed a default
judgment to be entered against them at District Court 9-1-01.
Then, Defendants failed to properly file an appeal.
Defendants' appeal should be stricken pursuant to
District Justice Rules 1005E and 1006. In Slaughter v Allied
Heating, 636 A.2d 1121 (Pa. Super. 1993), the Superior Court held
that it was appropriate to strike an appeal where there was no
justification for the pro se litigant's failure to serve the
other party and to file Proofa of Service. Slaughter indicated
that a party's pro as status by itself does not establish good
cause for an appeal not to be stricken. Id. at 1125. A pro se
litigant's failure to follow the rules for filing an appeal from
the district justice office might be excused if the other party
and the district justice office received actual notice of the
appeal. Howland, Hesa Guinan S Toroav v Perzel, 667 A.2'1 1163,
1165 (Pa.Super. 1995).
In the instant case, the Petition to Open Judgment does
not offer any good cause or any reason at all for Defendants'
failure to follow through with the Notice of Appeal. Defendants'
failure went beyond the procedural requirement of filing Proofs
of Service. Defendants failed to give Plaintiff and District
Court 9-1-01 any notice at all. Finally, Defendants failure to
comply with the rules caused prejudice to Plaintiff. Given no
notice of the appeal, Plaintiff spent money on filing fees
(filing the district justice judgment and prascipe for writ of
execution) and sheriff costa.
Defendants' Petition to Open Judgment should also be
denied because Defendants have no meritorious defense. In the
Petition, Defendants appear to assert that 1) Plaintiff sued the
wrong Defendants; and 2) Plaintiff does not have ownership of the
contract.
First, Plaintiff named Access Marketing and Robert
Michalski as defendants because of the impression Defendants gave
Plaintiff during the performance of the contract. Robert
Michalski gave Plaintiff the impression that Michalski was the
sole proprietor of a marketing business. At one point, Michalski
said that his company's name was Access Marketing and Data, Inc.
However, most of the timecards for the temporary employees bear
the name Access Marketing, and they were signed and approved by
an employee of Michalski. Even if Access Marketing and Data,
Inc. is a valid corporation, it could be sued as Access Marketing
because as a fictitious name, Access Marketing is considered a
corporate name. See Pa.R.Civ.P. 2176-77.
Second, Defendants' claim that Plaintiff transferred
its ownership of the contract is wrong. Plaintiff uses Phillips
Factors Corp to receive payments on invoices. When a customer
such as Defendants fails to pay the invoice, the involvement of
Phillips Factors Corp ends.
For the foregoing reasons, Plaintiff respectfully
requests that Defendants' Petition to Open Judgment be denied.
AUTHORITIES RELIED UPON
Howland, Hess, Guinan 6 Torpey v Perzel, 667 A.2d 1163 (Pa.
Super. 1995).
Slaughter v Allied Heating, 636 A.2d 1121 (Pa. Super. 1993).
Pa.R.Civ.P. 2176-17.
Respectfully submitted,
1. rL"14
Richard E. Guida
503 N. Front Street
Harrisburg, PA 17101
717-236-6440
Identification #62405
Attorney for Plaintiff
KEYSTONE STAFFING SERVICES,
INC.,
Plaintiff/Respondent
VS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVA
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners No. 99-4210 CIVIL TERM
CERTIFICATE OF SERVICE
I, Richard E. Guida, Esquire, hereby certify that a
true and correct copy of PLAINTIFF/RESPONDENT'S BRIEF IN
OPPOSITION TO PETITION TO OPEN JUDGMENT was served upon the
following parties by regular U.S. Mail, postage prepaid, this 10
day of September 1999, addressed as follows:
Craig A. Diehl, Esquire
3464 Trindle Road
Camp Hill, PA 17011
Richard E. Guida
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KEYSTONE STAFFING SERVICES,
INC.,
Plaintiff/Respondent
VS
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-4210 CIVIL TERM
TO THE HONORABLE EDGAR B. BAYLEY, JUDGE OF SAID COURT;
PLAINTIFF/RESPONDENT'S BRIEF IN
OPPOSITION TO PETITION TO OPEN JUDGMENT
STATEMENT OF FACTS
In January 1999, at Defendants' request, Plaintiff
provided temporary employment services to Defendants. All of the
timecards of the temporary employees were signed and approved by
Defendants. Despite invoices and other repeated efforts by
Plaintiff for payment, Defendants failed to make any payment to
Plaintiff for the services.
i On April 26, 1999, Plaintiff filed a Civil Complaint
against Defendants at District Court 9-1-01, indexed at CV-203-
99. On May 24, 1999, District Court 9-1-01 entered
j judgment in
favor of Plaintiff and against Defendants in the amount of
$4,106.51. More than thirty days later on July 12, 1999,
Plaintiff filed the district justice judgment at the Cumberland
i County Courthouse, indexed at 99-4120. A writ of execution was
also created and delivered to the sheriff.
On July 29, 1999, Plaintiff's counsel received a copy
of Defendants' Petition to Open Judgment. Through this Petition,
Plaintiff learned for the first time that Defendants filed a
Notice of Appeal on June 21, 1999, indexed at 99-3734 Civil.
Defendants failed to serve Plaintiff and District Court 9-1-01
with a copy of the Notice of Appeal, nor did Defendants in any
other manner notify Plaintiff and District Court 9-1-01 of the
appeal. Furthermore, Defendants failed to file with the
Prothonotary Proof of Service of the Notice of Appeal and Proof
of Service of a Rule upon Plaintiff to file a Complaint.
DISCUSSION OF THE ISSUES
Defendants Petition to Open Judgment should be denied
because Defendants do not have a valid excuse for failure to
defend against the Complaint. Defendants allowed a default
judgment to be entered against them at District Court 9-1-01.
Then, Defendants failed to properly file an appeal.
Defendants' appeal should be stricken pursuant to
District Justice Rules 1005E and 1006. In Slaughter v Allied
Heating, 636 A.2d 1121 (Pa. Super. 1993), the Superior court held
that it was appropriate to strike an appeal where there was no
justification for the pro se litigant's failure to serve the
k other party and to file Proofs of Service. Slaughter indicated
that a party's pro se status by itself does not establish good
cause for an appeal not to be stricken. Id. at 1125. A pro se
litigant's failure to follow the rules for filing an appeal from
the district justice office might be excused if the other party
and the district justice office received actual notice of the
appeal. Howland Hess, Guinan 6 Torpay v Perzel, 667 A.2d 1163,
1165 (Pa.Super. 1995).
In the instant case, the Petition to Open Judgment does
not offer any good cause or any reason at all for Defendants'
failure to follow through with the Notice of Appeal. Defendants'
failure went beyond the procedural requirement of filing Proofs
of Service. Defendants failed to give Plaintiff and District
Court 9-1-01 any notice at all. Finally, Defendants failure to
comply with the rules caused prejudice to Plaintiff. Given no
notice of the appeal, Plaintiff spent money on filing fees
(filing the district justice judgment and praecipe for writ of
execution) and sheriff costs.
Defendants' Petition to Open Judgment should also be
denied because Defendants have no meritorious defense. In the
Petition, Defendants appear to assert that 1) Plaintiff sued the
wrong Defendants; and 2) Plaintiff does not have ownership of the
contract.
1 First, Plaintiff named Access Marketing and Robert
Michalski as defendants because of the impression Defendants gave
Plaintiff during the performance of the contract. Robert
Michalski gave Plaintiff the impression that Michalski was the
sole proprietor of a marketing business. At one point, Michalski
said that his company's name was Access Marketing and Data, Inc.
However, most of the timecards for the temporary employees bear
the name Access Marketing, and they were signed and approved by
an employee of Michalski. Even if Access Marketing and Data,
Inc. is a valid corporation, it could be sued as Access Marketing
because as a fictitious name, Access Marketing is considered a
corporate name. See Pa.R.Civ.P. 2176-77.
Second, Defendants' claim that Plaintiff transferred
its ownership of the contract is wrong. Plaintiff uses Phillips
Factors Corp to receive payments on invoices. When a customer
such as Defendants fails to pay the invoice, the involvement of
Phillips Factors Corp ends.
For the foregoing reasons, Plaintiff respectfully
requests that Defendants' Petition to Open Judgment be denied.
J.
i
AUTHORITIES RELIED UPON
Howland, Boss, Guinan 6 Torpev v Parzel, 667 A.2d 1163 (Pa.
Super. 1995).
Slaughter v Allied Heating, 636 A.2d 1121 (Pa. Super. 1993).
Pa.R.Civ.P. 2176-77.
Respectfully submitted,
`l1.I `--4
Richard E. Guide
503 N. Front Street
Harrisburg, PA 17101
717-236-6440
Identification (162405
Attorney for Plaintiff
KEYSTONE STAFFING SERVICES,
INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVA
Plaintiff/Respondent
VS
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners No. 99-4210 CIVIL TERM
CERTIFICATE OF SERVICE
I, Richard E. Guida, Esquire, hereby certify that a
true and correct copy of PLAINTIFF/RESPONDENT'S BRIEF IN
OPPOSITION TO PETITION TO OPEN JUDGMENT was served upon the
following parties by regular U.S. Mail, postage prepaid, this 10
day of September 1999, addressed as follows:
Craig A. Diehl, Esquire
3464 Trindle Road
Camp Hill, PA 17011
Richard E. Guida
KEYSTONE STAFFING SERVICES,
INC.,
Plaintiff/Respondent
Va.
ACCESS MARKETING and
ROBERT MICHALSKI,
Defendants/Petitioners
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4210 CIVIL
CIVIL ACTION - LAW
DEFENDANT/PETITIONER'S BRIEF IN
SUPPORT OF PETITION TO OPEN JUDGMENT
Statement of Facts:
Plaintiff, Keystone Staffing Services, Inc., provided
temporary employees to Defendant, Access Marketing & Data, Inc.,
for several projects. A dispute arose between the parties
regarding payment because Defendant believes Plaintiff did not meet
the contractual terms on a specific project causing Defendant to
miss a crucial deadline to its client.
On or about April 26, 1999, Plaintiff filed a Civil Complaint
against Defendants, Access Marketing and Robert Michalski, in front
of District Magistrate Clement. On May 24, 1999, said Court
entered judgment in favor of Plaintiff against the noted Defendants
because nobody appeared for Defendants. A notice of appeal was
timely filed on June 21, 1999 by Defendants. Service of the appeal
was never provided. On or about July 12, 1999, Plaintiff entered
the judgment at the Cumberland County Courthouse at 99-4120. A
writ of execution was also delivered to the Sheriff. On or about
July 19, 1999, Defendants found out that PNC Bank, N.A., pursuant
1
to a Writ of Execution, froze bank accounts #5000844783 and
#5001143698 belonging to Access Marketing & Data, Inc., who was not
a Defendant in the instant proceeding.
Defendants contacted counsel who filed a Petition to Open
Judgment on July 30, 1999.
Issue:
1. Should this Court open the judgment against Defendants
who were improperly named in the District Magistrate suit and Writ
of Execution?
Discussion:
Prior to addressing the aforesaid issue, Defendants/
Petitioners concede that the failure to provide service of the
appeal is fatal to its claim on this particular issue.
However, this Honorable Court should still open the judgment
when Plaintiffs did not sue the proper parties. Initially, there
is no valid entity or registered or unregistered fictitious name of
a business under the name of Access Marketing. For this reason,
Defendants did not believe they had a duty to defend the suit.
Plaintiff, through a diligent search at the Department of State,
Commonwealth of Pennsylvania, would have discovered the proper name
of Defendant. The corporation known as Access
market ing/Management, Inc. was validly formed on March 21, 1997.
An amendment to the Articles of Incorporation was filed March 30,
2
1998 changing the name to Access Marketing & Data, Inc. At no time
did said corporation conduct business as Access Marketing. Counsel
for Defendants believes that this Court should not create
precedence allowing writs of execution to be entered against
improperly named Defendants.
A review of Pennsylvania case law surrounding this issue is
most prevalent when there also is an issue of the expiration of the
Statute of Limitations and whether an amendment of the pleadings
should be allowed to sue the proper party if the original pleadings
contained an improper name. In Fretts v. Pavetti, 282 Pa. Super.
166, 422 A.2d 881 (1980), the Court allowed an amendment after the
Statute of Limitations expired to amend a corporate name sued in
the original pleadings to a sole proprietor when it was discovered
no corporation existed. Similarly, in Powell v. Sutliff, 410 Pa.
436, 189 A.2d 864 (1963), the Court allowed an amendment to change
from a partnership to a corporation once it was discovered that the
proper party was a corporation.
In the instant proceeding, although there is no issue of the
Statute of Limitations, Defendants advocate that this Court should
require that Plaintiff amend its original complaint to sue the
proper party. The holding of Hoare v Bell Telephone Co. of Pa.,
509 Pa. 57, 500 A.2d 1112 (1985), provides some insight to our
issue. In this case, the Court refused to allow Plaintiff to amend
the pleadings after the Statute of Limitations expired when it was
determined that they were actually adding a new party to the suit.
3
Our present case reveals that no such entity entitled Access
Marketing exists. Accordingly, to allow a judgment to be entered
under this name and then allow a Writ of Execution to be issued in
the name of Access Marketing and Data, Inc. is shocking to the
quest for justice. An action must be instituted against a
corporation or similar entity in its corporate name; the corporate
name is any name, real or fictitious, under which a corporation was
organized or conducts its business. Anderson Ecuinment Co v
Huchber, 456 Pa. Super. 535, 690 A.2d 1239 (1997).
Plaintiff suggests that by using the name Access Marketing,
this is a valid substitution for suing the corporation, Access
Marketing & Data, Inc. Pennsylvania Rule of Civil Procedure 2177
states, "an action shall be prosecuted by or against a corporation
or similar entity in its corporate name. 11 For the following
reasons, Plaintiff's judgment should be deemed invalid:
(1) The original suit did not comply with Rule 2177;
(2) There is no registered fictitious name under Access
marketing;
(3) The corporation, Access Marketing & Data, Inc., is
properly registered as a corporation in this
Commonwealth; and
(4) The corporation, Access Marketing & Data, Inc., did
not conduct its business under the name Access
Marketing.
4
Plaintiff's sloppiness or failure to search the appropriate
records prior to filing suit should not be rewarded. Furthermore,
checks were issued to Plaintiff in the past showing the proper
name. Plaintiff's other argument suggesting that an employee
signed time cards is not controlling in that this employee(s) had
no authority to bind the corporation to a contract. Accordingly,
for the aforementioned reasons, judgment should be opened to allow
the proper party an opportunity to defend the case on its merits.
Finally, in the alternative, that the corporation is held
liable and the judgment is not opened as to this entity, the
judgment against Robert Michalski, individually, should be opened.
As espoused in W. F. Meyers Co.. Inc. v. Stoddard, 363 Pa. Super.
481, 526 A.2d 446 (1987), if the corporation is held liable,
failure to register a fictitious name of the corporation did not
affect the validity of a contract entered into by the corporation
and did not render officers and agents of the corporation
individually liable for corporate debts, absent showing of fraud by
corporate officers in referring to the corporation by name which
was not registered. The temporary employees utilized were by a
corporate entity, not Robert Michalski.
Conclusion:
For the reasons set forth herein, Defendants/Petitioners
respectfully request that this Court open the judgment filed
against them.
W
LAW OFFICES OF CRAIG A. DIEHL
Dated: .S.°Ee ?
By: G..??.fi,rp
Crai A. Diehl, Esquire
Attorney ID No. 52801
3464 Trindle Road
Camp Hill, pA 17011
(717) 763-7613
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COMMONWEALTH OF PENNSYLVANIA
rnl INTY nF• CUMBERLAND
Mag. Dial. No.:
09-1-01
DJ Name: Hon
CHARLES A. CLEMENT, JR.
A ,ess: 1106 CARLISLE ROAD
CAMP HILL, PA
Talephone: (717) 761-4940 17011
ATTORNEY FOR PLAINTIFF
GUIDA LAW OFFICES
RICHARD GUIDA
503 N. FRONT STREET
HARRISBURG, PA 17101
v4R-4alo
NOTICE OF IVL CASE /TRANSCRIPT
PLAINTIFF: NAME and ADDRESS
FREYSTONE STAFFING SERVICES, INC
360 MARKET STREET
LEMOYNE, PA 17043
L J
VS.
DEFENDANT: NAME and ADDRESS
(ACCESS MARKETING/ROBERT MICHALSKI ,
806 ALLEN STREET
NEW CUMBERLAND, PA 17070
L
DocketNo.: CV-0000203-99
I Date Filed: 4/26/99
THIS IS TO NOTIFY YOU THAT:
- AT`r . s :ntnnr •PT.T'
Judgment:
® Judgment was entered for: (Name) Kg QJ"O*TR ArPARET Tr ISERVICI 4 TN
® Judgment was entered against: (Name) •• JRQARRT MTPVaT.QYT ACr-Rqq in the amount of $ 4, i n6 _ Rl on:
? Defendants are jointly and severally liable.
? Damages will be assessed on:
? This case dismissed without prejudice.
(Date of Judgment) c ;124J99
(Date & Time)
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Amount of Judgment Subject to
? Attachment/Act 5 of 1996 $-
F-] Levy is stayed for days or ? generally stayed.
n rW..tinn to Ipvv has heen filed and hearing will be held:
Post Judgment Credits
Post Judgment Costs
Certified Judgment Total $
Date: Place:
Time:
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 10 DAYS AFTER THE ENTRY OF JUPGkNT SY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAVIVIL diVISION. YOU
MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITR/ANSCRIPT FORM WITH?FOUR NbSICE OF APPEAL.
/ . f •(?! 46't Justice
Date 1 l
I certi 1y h t this is a true an c rr ct copy the re?Qrd 1 11 o'yt'rye oceedln a _oni nm tuuyl....
I Date /?f( trict Justice
My commission expires first Monday of January, 2002 SEAL
AOPC 31599
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
Caption:
PRAECIPE FOR WRIT OF EmCUTION
. ( ) Confessed Judgment
Keystone Staffing Services
Vs.
: Arrount Due $4,106.51
Access Marketing QNC 6Ank
Robert Michalski r76r,, s?RR
806 Allen Street NG M3 M,LQ
New Cumberland, PA 17070
? FA Ca' 1, s1Qobi 3
0efeA44LA45
TO THE PROTHONOTARY OF THE SAID COURT:
Interest
Atty's Coam
Costs
The undersigned hereby certifies that the below does not arise out of a retail
installment sale, contract, or account based on a confession of judgment, but if it does,
it is based on the appropriate or.i.ginal proceeding filed pursuant to Act 7 of 1966 as
amended; and for real property pursuant to Act 6 of 1974 as amended.
Issue writ of execution in the above matter to the Sheriff of Cumberland
County, for debt, interest and costs upon the following described property of the
defendant(si
all personal property at 806 Allen Street, New Cumberland, PA 17070
PRAECIPE FOR ATTACHMENT EOJC[7TICN
Issue writ of attachment to the Sheriff of Cumberland County, for debt,
interest and costs, as above, directing attachment against the above-named garnishee(s) for
the following property (if real estate, supply six copies of the description; supply four
copies of lengthy personalty list) Sarvt aeeo,.m"' reaa?,,,eG
and all other property of the defendant(s) in the possession, custody or control of the
said garnishee(s).
(Indicate) Index this writ against the garnishee(s) as a lis pendens against
real estate of the defendant(s) described in the attached exhibit.
DATE: 7/7/1999 Signature: 11---t F_ /Y'?
Pint Name: Richard E. Guida
L,:d:ess: 503 N. Front Street
Harrisburg, PA 17101
: ( ) Other
: File No. 99-4210
.crc Plaintiff
717-236-6440
62405
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KEYSTONE STAFFING SERVICES,
INC.
vs.
ACCESS MARKETING
ROBERT MICHALSKI
IN THE COURT OF COMMON 15LEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAN
NO.
rl?- LI al0 C.;'QTenn-J
"TICE OF ENTRY OF JUDGMENT
Notice is hereby given that a u
matter has been entered against You the
t
i0.. l'd tai°ou?ntvo£c$4t106e51 on
1999.
Copies of all documents filed with the Prothonotary in support of
the within judgment are enclosed.
Prothonotary
By:
If you have any questions regarding this Notice - the filing party: Please contact
Richard E. Guida, Esquire
503 North Front Street
Harrisburg, PA 17101
717-236-6440
This Notice is given in accordance with Pa.R.C.P. 236.
NOTICE SENT TO:
Robert Michalski
806 Allen Street
New Cumberland, PA 17070
a
n
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14.
SHERIFF'S RETURN - GARNISHEE
CASE NO: 1999-04210 P
CO ONWE LCUMBERLANDTH OF
KEYSTONE STAFFING SERVICES INC
VS.
ACCESS MARKETING/ROBERT MICHAL
And now KATHY KE , Sheriff or Deputy Sheriff of
CUMBERLAND , County, who being duly sworn according to law,
1999, attached as
at 930:00 HOURS, on the 15th day of July
herein commanded all goods, chattels, rights, debts, credits, and moneys
of the within named defendant ACCESS MARKETING ROBERT
MICHALSKI
in the hands, possession, or control of the within named Garnishee
PNC BANK
by then and there summoning the said Garnishee at
46 MJ ALL
CARLISLE PA 17013
County, Pennsylvania, by handing to
CUMBERLAND personally
BETH EPPLEY BRANCH SERVICE MANAGER
three copies of interrogatories together with THREE true and attested
copies of the within JUDGMENT - DJ and made the
contents thereof known to her.
So answers:
Sheriff's Costs:
.00
Docketing
Service .00
Affidavit .00 i
Surcharge m s 1
X00/00/0000
by
Sworn and/fsubscribed to before me
this U4-k day of I?4
19 clef A.D./r /?-
a y
oil
KEYSTONE STAFFING SERVICES,
INC.
Plaintiff
VS
ACCESS MARKETING
ROBERT MICHALSKI
Defendants
VS
PNC BANK,
Garnishee
To Prothonotary:
IN THE ACOURT OF COMMON PLEAS
ND ND COUNTY,,P
CUMBERLAND
CIVIL ACTION - LAW
99-4210
Please dissolve the garnishment against PNC Bank.
Date: October 71 1999 Respectfully submitted,
Richard E. Guida
Guida Law Offices
503 North Front Street
Harrisburg, PA 17101
717-236-6440
Identification #62405
Attorney for plaintiff
r
? N
rb
i
R Thomas Kline, Sheriff, who being duly sworn according
.
to law, states this writ is returned SATISFIED. Atty. Guida collected
$3160.39 as payment in full.
'
Advance Costs: $150.00
s Cost
Sheriff
cketing s:
$18.00 Sheriff's Costs: 130.81
undage 63.21 $ 19.1.9
w Library .50
*othonotary 1.00
vice
nishee 3.10
9.00
Refund to atty on 10-18-99
charge 16.00
Levy 20.00
$130.81 Sow s:
R. Thomas Kline, Sheriff
Sworn and subscribed to before me
This 34Ak day ofQdl"
sriff
By
1999, A.D. Q ?-P.?.?D p he
O
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S9L33
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO. 99-4210
CIV- I---?_CIVLIAL? Term
TO THE SHERIFF OF
Cumberland
To satisfy the debt, interest and costs due COUNTY:
from Access Marketin PLAINTIFF(S)
Robert Michalski, 806 nice
(1) You are directed to levy upon the property of the defendant(s) and to sell all DEFENDANT(S)
at 806 Allen Street, New Cumberland ersonal property
PA 17070
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
?NC BANK, 46 MJ Mall, Carlisle
, PA 17013
Serve
ing interrogatories
GARNISHEE(S) as follows:
and t notify o the garnishee(s) that: (a) an attachment has been issued; (Pb) the garnishee(s) ts/are enjoined from a i
debt to or for the account of the defendant(s) and from delivering any roperty the defendant(s) j otherwise disposing
thereof; I P Y n9 any
(3) If propenyof the defendant(s) not levieduponan subjectto attachment Is found in the Possession of anyone other
stated.
than a named garnishee, you are directed to notify hinvher that he/she has been added as a garnishee and is enjoined as above
Amount Due $4,105,51
L.L. $50
Interest _
Atty's Comm io
0
Afty Paid $32.25
Plaintiff Paid
Date: July 12, 1999
Due Prothy $1.00.
Other Costs
Curtis R. Lon
REQUESTING PARTY:
Name Richard E. Guida, Esq.
Address: 503 N. Front Street,
Harrisburg, PA 1.7101
Aftorneyfor: Plaintiff
Telephone: 717-236-6440
Supreme Court ID No. 6 2 4 0 5
Prothonotary, Civil Division
by: U ot V t/l?(10 Mn ??
Deputy
i?
E
;1
R. Thomas Kline, Sheriff, who being duly sworn according
to law, states this writ is returned SATISFIED. Atty. Guida collected
$3160.39 as payment in full.
Sheriff's Costs: Advance Costs: $150.00
rincketing $18.00 Sheriff's Costs: 130.81
undage 63.21 $ 19.19
w Library .50
::--*othonotary 1.00
0.01111- -
vice 3.10
nishee 9.00 Refund to atty on 10-18-99
charge 16.00
Levy 20.00
$130.81 So w s•
Sworn and subscribed to before me
This 344k day of?
1999, A.D.
R. Thomas Kline, Sheriff
BY pu "
SAA
Dp heriff
O
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G2- .2G a1?1
M.33